COMMONWEALTH v. RUIZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Before us is the defendant's consolidated appeal from (1) his convictions of indecent assault and battery on a person under the age of fourteen, and (2) an order denying his motion for a new trial. See Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). The defendant's sole contention on appeal is that he is entitled to a new trial because he received the ineffective assistance of counsel. We affirm.

Background. In 2015, the defendant was indicted for aggravated rape of a child, indecent assault and battery on a person over the age of fourteen (two indictments), and indecent assault and battery on a person under the age of fourteen (five indictments), based on allegations that he sexually abused his step-daughter, Amy,² from the time Amy was eight years old until after Amy turned fourteen.³ Amy was sixteen years old at the time of the defendant's jury-waived trial, and she testified that, between 2008 and 2014, the defendant: repeatedly touched her private parts over and under her clothing; performed oral sex on her; put his tongue in her mouth while kissing her; and made her touch his exposed penis. Amy did not tell anyone about the abuse until 2014, when she told her twelve year old niece. Amy did not report the abuse to her mother because she and her mother had a tumultuous relationship which had resulted in multiple investigations of the family by the Department of Children and Families (DCF). The investigations were documented in reports prepared by DCF. In one report, dated November 18, 2013, Amy “denied any sexual abuse” to a DCF worker who was investigating allegations of physical abuse of Amy by her mother. Amy again “denie[d] ever being sexually abused” on March 6, 2014 (before she turned fourteen), during a DCF investigation into similar allegations involving the mother.

On the day of trial, the Commonwealth filed a motion in limine to substitute Amy's sister as the first complaint witness. The Commonwealth represented that Amy disclosed the abuse to the niece at the same time the niece was disclosing abuse to Amy, and Amy's sister (the niece's mother) overheard the girls' conversation. The sister intervened, at which time, according to the Commonwealth, Amy disclosed details of the abuse to the sister. Trial counsel argued in opposition to the motion in limine that the defendant would be prejudiced by the substitution because “there are numerous things in the DCF records that I did not want to bring in or anything that has to do with what happened in this family directly involving the older sister that I would [have] brought in” for impeachment had trial counsel known the sister would testify as the first complaint witness. After the judge allowed the motion in limine, the sister testified that Amy never reported sexual abuse before 2014, when the sister overheard Amy telling the niece that the defendant was “touching her.” The sister intervened and ended the conversation without letting Amy give any details.⁴

The defense at trial was that the assaults never happened, as evidenced by Amy's failure to report them despite having numerous opportunities to do so. In furtherance of this theory, trial counsel asked Amy on cross-examination whether Amy ever told her mother “or anyone else” that the defendant touched her inappropriately. Amy answered, “No.” On cross-examination of Amy's sister, defense counsel established that the sister had tried multiple times to have Amy removed from the mother's custody by reporting the mother to an “agency,” but Amy was not removed until she made the accusations of sexual abuse by the defendant. Trial counsel then called Amy's mother as a witness, who testified that Amy never reported sexual abuse to her or to DCF. On redirect examination, trial counsel asked Amy's mother, “In fact, when [DCF] did come, was a question about any sexual misconduct asked?” The mother answered, “Yes. She wouldn't never say that yes that she was sexually abused or nothing.” Amy's brother also testified for the defense and stated that Amy never reported sexual abuse.

Trial counsel argued in closing that the judge should not believe Amy's allegations because “DCF got involved numerous times and ․ there was never any indication [the defendant] was someone who abused her.” Counsel continued, “she never indicated there was any abuse of her sexually or any other way that was reported,” and “nothing indicated that anything was mentioned at school or [to] any other friend or any other agency.” After deliberating, the judge convicted the defendant on three indictments for indecent assault and battery on a person under the age of fourteen and acquitted him on the remaining indictments.⁵ The defendant timely appealed.

Thereafter, represented by new counsel, the defendant sought and obtained a stay of the appeal while he filed a motion for a new trial. In the motion, the defendant claimed that he was deprived of the effective assistance of counsel when trial counsel failed to introduce in evidence the two DCF reports in which Amy explicitly denied sexual abuse. The motion was supported by affidavits from appellate counsel and trial counsel, who stated that he “was surprised to learn of the two reports” because he “did not notice either report ․ and was unaware of both at the time of [the defendant's] trial.” Had he been aware of the denials, trial counsel averred, he “certainly would have made full use of them at trial and would have had no reason to hesitate to do so.” Trial counsel's affidavit is silent as to his trial strategy and does not explain what “full use” of the denials would have entailed. The defendant did not file an affidavit.

“After careful review of the defendant's motion, and the entirety of the trial transcript,” a second Superior Court judge (motion judge) found that “the defendant has failed to raise a substantial issue warranting a new trial.”⁶ Contrary to the assertions in trial counsel's affidavit, the motion judge found it “abundantly evident that [trial counsel] had a thorough grasp and understanding of the contents of the DCF files” because he “directly and/or indirectly utilized the subject denials during the pretrial motion stage, opening statements, direct and cross examination of witnesses, and in the closing.” The motion judge concluded that “[t]he denials contained in the DCF records were well covered,” and denied the motion for a new trial without holding an evidentiary hearing. The defendant appealed.

Standards of review. 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). “The judge may decide the motion on the basis of affidavits without further hearing, ‘if no substantial issue is raised by the motion or affidavits.’ ” Commonwealth v. Stewart, 383 Mass. 253, 257 (1981), quoting Mass. R. Crim. P. 30 (c) (3), 378 Mass. 901 (1979). “In determining the adequacy of the defendant's showing, the motion judge may consider whether the motion and affidavits contain credible information of sufficient quality to raise a serious question.” Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015).

“The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge.” Stewart, 383 Mass. at 257. We review the judge's decision “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). A judge does not commit an abuse of discretion unless we conclude that the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Where, as here, the defendant claims that trial counsel was ineffective, 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). The defendant bears the burden of “showing that better work [by counsel] might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). A defendant claiming that an attorney's tactical decision amounts to ineffective assistance of counsel must show that the decision was “manifestly unreasonable when made.” Commonwealth v. Hudson, 446 Mass. 709, 716 (2006), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

Discussion. The defendant claims that he is entitled to a new trial because trial counsel's failure to introduce the DCF reports “led to an omission from the defense case of evidence so extraordinarily probative that its effective concealment from the trial judge was palpably prejudicial.” Evidence that Amy previously denied being a victim of sexual abuse was probative of Amy's credibility. However, we cannot agree that it was “extraordinarily probative” where all of the witnesses at trial, including Amy, testified that Amy never reported sexual abuse before the conversation in 2014. We are not persuaded by the defendant's claim that there is a “significant difference” between this evidence and evidence that Amy failed to report sexual abuse by telling DCF that she was not experiencing such abuse.

Even if we were persuaded, the defendant is not entitled to a new trial because the records at issue are cumulative of the significant evidence that Amy never reported sexual abuse before 2014. “The failure to offer cumulative evidence is not ineffective assistance of counsel.” Commonwealth v. Drew, 447 Mass. 635, 650 (2006). Nor is failure to impeach a witness, see Commonwealth v. Bart B., 424 Mass. 911, 916 (1997), because “[i]mpeachment of a witness is, by its very nature, fraught with a host of strategic considerations” that trial counsel is in the best position to make. Hudson, 446 Mass. at 715. Here, trial counsel chose to present evidence of Amy's denials through the testimony of the witnesses rather than through documents which also apparently contained “numerous things” that trial counsel “did not want to bring in” evidence. By adopting this strategy, the Commonwealth was not privy to those numerous, presumably unfavorable, “things.” This was not manifestly unreasonable. Where everyone, including Amy, testified that Amy never previously reported sexual abuse, and where the judge obviously weighed Amy's credibility with care because she acquitted the defendant of most of the charges, introducing the DCF records would not have “accomplished something material for the defense.” Satterfield, 373 Mass. at 115.

The motion judge was not required to find that the motion for a new trial raised a substantial issue because trial counsel's affidavit was unopposed. See Vaughn, 471 Mass. at 405. “Even where, as here, the motion judge did not preside at the trial, the credibility, weight, and impact of the affidavits are entirely within the motion judge's discretion.” Id. The motion judge could infer from trial counsel's question to Amy's mother on redirect examination that trial counsel did in fact see the two DCF reports, either because they were among the DCF records trial counsel “asked for and had an opportunity to read” before trial, or because they were included in the “many pages of DCF investigation records” trial counsel averred the defendant “amassed” and provided to him before trial. Even if trial counsel had not seen these two particular DCF reports as part of his review of the DCF investigative records -- as he reported in his affidavit -- he nonetheless had ample information that Amy had never reported the abuse when asked about it by DCF. Thus, this omission on his part could not have deprived the defendant of a substantial ground of defense. Where the defendant provided trial counsel with DCF reports in furtherance of the defense that Amy never reported sexual abuse, the defendant's failure to submit an affidavit describing his efforts, if any, to bring the records at issue to trial counsel's attention “speaks volumes.” Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). We see no error of law, and no abuse of discretion, in the motion judge's decision to deny the motion for a new trial without an evidentiary hearing.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   A pseudonym.

3.   Each indictment was subject to an enhancement under G. L. c. 279, § 25 (a), based on allegations that the defendant was a “habitual criminal.”

4.   In light of this testimony and the late disclosure, and on the defendant's motion, the judge declined to consider the first complaint testimony during her deliberations.

5.   The habitual criminal enhancements applicable to the indictments of which the defendant was convicted were dismissed by the Commonwealth as part of a joint sentencing recommendation.

6.   The trial judge retired shortly before the defendant filed the motion for a new trial.