COMMONWEALTH v. BRIDDON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant was convicted of rape and assault and battery by means of a dangerous weapon.² He appealed, and while his appeal was pending he filed a motion for a new trial on the ground that he received ineffective assistance of counsel. The motion was denied by a judge, who was not the trial judge, without an evidentiary hearing.³ The defendant appealed from the order denying the motion and that appeal was consolidated with his direct appeal. We affirm the convictions but because we conclude that the judge erred by denying the defendant an evidentiary hearing, the order denying the motion for a new trial is vacated, and the case is remanded to the Superior Court.

Background. The jury could have found the following facts. On the night of April 30, 2007, the defendant was socializing with a group of friends at a bar in Worcester when he met the victim, whom we shall call Sally. Earlier that day, Sally had attended a barbecue with her boyfriend and consumed four or five beers. At some point, Sally's boyfriend left and went to a nearby bar. Later that evening, Sally went to the bar looking for him. When she found him, the two had a disagreement, and Sally left the bar alone and began walking home. Sally was upset. As Sally was passing another bar, Jose Murphy's, a woman who was outside smoking a cigarette approached Sally and asked her what was wrong. The two talked and eventually the woman invited Sally to join her and her friends, including the defendant, inside the bar. Sally did so and was with the group when they went to a different bar, Ralph's Chadwick Diner (Ralph's). At the time, Sally understood that the defendant and the other men were police officers in Worcester. As it turned out, however, the defendant was employed part-time as a police officer for the town of Rutland and full-time as a mechanic for the Worcester Regional Transit Authority. While at Ralph's, the defendant gave Sally an open beer. Sally drank half of it and began to feel nauseated and dizzy.

At approximately 2 a.m., the defendant offered to drive Sally home. She accepted the offer and got into the defendant's truck. But, as Sally testified, before driving her home, the defendant took her to a different location, a building that Sally described as a “house,” and carried her inside to an empty room where he raped her. Sally lost consciousness twice during the episode. She was still weak and unable to walk properly when the defendant drove her home at approximately 6 a.m.

Sally did not immediately report the rape because she was scared. In particular, she was afraid that she would not be believed. After about two months, Sally decided to report the rape, and Lieutenant William O'Connor (Lt. O'Connor) of the Worcester Police Department commenced an investigation. Sally could not identify the perpetrator, nor could she say precisely where the rape had occurred. But she remembered the name of the bar, Ralph's, and said she believed that the building where she was raped was located in the vicinity of Becker College. This latter detail was noted in news accounts of the rape investigation.

Ultimately, Lt. O'Connor identified the people who were with Sally at Ralph's on the night in question. He contacted the defendant, who came to the Worcester police station and consented to an interview, which was recorded and played for the jury. The defendant acknowledged that he was with Sally and that he drove her home, but denied the allegations of rape. He also claimed that he did not know anyone who lived or worked in the vicinity of Becker College, other than the son of the Rutland police chief who worked at the college itself, nor did he have any friends in that area. However, during the course of the investigation, Lt. O'Connor learned that the defendant had regular access to a building located on Williams Street, which is close to Becker College. When Lt. O'Connor brought Sally to the building, 59 Williams Street, Sally stated that it looked like the building where she was raped. Other evidence at trial established that the defendant had a key to the building and attended monthly union meetings there. There was also evidence that the building's owner, Christopher Bruce, and the defendant were friends.

The defendant did not testify at trial. However, he had testified at his first trial, see note 1, supra, and the testimony he gave at that trial was read to the jury. He stated that he had been at Jose Murphy's with friends, and that when Sally arrived he did not speak with her. He explained that at one point he left after receiving a call from a friend who needed a ride home, but he rejoined the group, which now included Sally, at Ralph's. The defendant claimed that Sally followed him when he went outside to smoke a cigarette and the two engaged in small talk. The defendant testified that Sally gave him a hug and a small kiss on the lips, and thanked him for listening to her. Around 2 a.m., the defendant said he was leaving, and Sally asked him for a ride home. The defendant maintained that he drove Sally directly home. The defendant admitted that he had been to 59 Williams Street numerous times and that he knew the owner of the building.

Discussion. 1. Direct appeal. a. Counsel's failure to request an instruction on identification. The defendant argues that his lawyer provided him with ineffective assistance by failing to request that the judge instruct the jury on identification in accordance with Commonwealth v.defendant acknowledged that he was with Sally and 296, 302 (1979). Apart from the fact, as we discuss later, that the defendant filed a motion for a new trial and failed to raise this alleged failure as a ground in support of his claim of ineffective of assistance, the argument has no merit.⁴ Identification was not a live issue in the case. To the contrary, the defendant admitted that he was with Sally and drove her home. In the circumstances presented, the failure to request a Rodriguez instruction was not conduct that fell “measurably below that which might be expected from an ordinary fallible lawyer,” and, therefore, this claim fails. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Contrast Commonwealth v. Navarro, 474 Mass. 247, 254 (2016) (in case involving unknown masked perpetrators, need for Rodriguez instruction was apparent).

b. Alleged improprieties in the prosecutor's closing argument. In defense counsel's closing argument, he asserted that important details of the victim's account had been contradicted by one of “the Commonwealth's own witness[es].” During her closing argument, the prosecutor stated:

“And let me just say, when talking about the witnesses, the judge has already instructed you and he's going to instruct you again that the Commonwealth has the burden of proof. The defendant doesn't have to produce any witnesses. They don't have to produce any evidence.

“But let's be clear, witnesses are witnesses because they were somehow attached to the facts of the case. Neither side owns a witness. They're not the Commonwealth's witnesses. They're anybody's witness, and any side, anyone's free to call a witness.”

Defense counsel made a timely objection, asserting that these remarks impermissibly shifted the Commonwealth's burden of proof to the defendant. The judge overruled the objection, and chose not to give a curative instruction. The judge stated that he would address the issue in his final instructions. At that time, the judge twice informed the jury that “the Commonwealth must prove the defendant's guilt beyond a reasonable doubt” and stated that “this burden never shifts.” In addition, in his preliminary instructions given at the commencement of trial the judge told the jury twice that “[t]he law does not require a defendant to prove his innocence or to take the stand or testify or produce any evidence at all,” and that “the burden of proof is always upon the Commonwealth to prove that a defendant is guilty.”

Because trial counsel objected to the challenged remarks, we review for prejudicial error. See Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015). We acknowledge that the challenged remarks were susceptible of being interpreted in the manner suggested by the defendant, but we conclude that, in light of the entire argument, the judge's instructions, and the evidence presented at trial, see Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 567 (2010), that the defendant was not prejudiced.⁵ The comment, while inadvisable, was not an explicit statement on the defendant's failure to produce evidence. See Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 363 (2018) (no prejudicial error where “prosecutor did not focus the jury's attention on a specific element missing from the defense, nor did the prosecutor otherwise suggest to the jury -- either implicitly or explicitly -- that the defendant had an affirmative duty to counter the Commonwealth's evidence against him” [quotation omitted] ). Contrast Commonwealth v. Johnson, 463 Mass. 95, 113 (2012) (improper burden shifting occurred when prosecutor “intimated that defense counsel had to ‘deal with’ the ‘stubborn facts’ in some way, which could have suggested to the jury a positive responsibility on the part of the defendant”). Finally, we note that the prosecutor herself observed that “[t]he defendant doesn't have to produce any witnesses” and “[t]hey don't have to produce any evidence.”

c. The instruction on consciousness of guilt. At the charge conference, the prosecutor requested that the judge instruct the jury on consciousness of guilt. Such an instruction was appropriate, the prosecutor argued, because the evidence proved that the defendant intentionally made a false statement to the police when he said that he did not know anyone in the area of Becker College when, in fact, he attended monthly union meetings at 59 Williams Street, knew the owner of the building, and had a key to the premises. Defense counsel objected to the instruction. He argued that the Commonwealth had failed to prove that the statements at issue were false because there was no direct evidence that the defendant knew that Williams Street was located near Becker College. The judge determined that the instruction was appropriate and gave it.⁶ Because the issue was preserved, we consider whether “we can be certain that [any] improper instruction ‘did not influence the jury, or had very slight effect.’ ” Commonwealth v. Morris, 465 Mass. 733, 737 n.2 (2013), quoting Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008).

“To determine whether a consciousness of guilt instruction is warranted, a judge need only assess the relevancy of the evidence.” Morris, 465 Mass. at 738. In the case of false statements to the police, it is proper for the judge to give the instruction on consciousness of guilt when there is other evidence tending to prove the falsity of the statements. See Commonwealth v. Robles, 423 Mass. 62, 70-71 (1996). Here, the evidence suggested that the defendant knew from newspaper articles that the rape had occurred in the vicinity of Becker College and, although he had a friend who owned a building (59 Williams Street) in that area, he told Lt. O'Connor that he did not. In fact, the defendant did not mention his connection, which was substantial, to the building at 59 Williams Street during his interview. If the jury believed the Commonwealth's evidence, namely that the location of the rape -- 59 Williams Street -- was within the vicinity of Becker College, “they could intimate that the defendant's statements to the police were false and deliberately made to mislead the police.” Id. at 71. Given these circumstances, we conclude that the judge acted properly within his discretion in deciding to give the instruction.

2. Motion for a new trial. Represented by new counsel, the defendant filed a motion for a new trial alleging that trial counsel provided ineffective assistance by failing to call his former wife, Wendy Briddon, as a witness for the purpose of establishing an alibi. Wendy ⁷ had testified at the first trial and stated that on the night in question the defendant had gone out with his friends and returned home at 3 a.m. She testified that she was angry because the defendant needed to watch their son the following day while she took their daughter to a doctor's appointment. Wendy testified that she and the defendant had an argument in the kitchen before she returned to bed and that the defendant slept on the couch. Wendy also testified on cross-examination that it was not unusual for the defendant to come home at 3 a.m. after going out with friends. At times, the defendant came home as late as 4 or 5 a.m., but that was unusual.

The defendant submitted an affidavit from trial counsel in support of his new trial motion. In that affidavit, trial counsel stated that he decided not to call Wendy for the following reasons: (1) by the time of the defendant's second trial, the defendant and Wendy were in contentious divorce proceedings, and trial counsel was concerned that she would not be helpful, (2) Wendy's testimony on cross-examination during the first trial that the defendant often stayed out late drinking after work while she was at home with the children might cause the jury to view the defendant negatively, and (3) in trial counsel's opinion, Wendy's testimony would be unlikely to persuade the jury that she had a clear memory of the night in question because she testified that the defendant often came home late and that they had had arguments on other occasions.

The defendant asserted that counsel's decision was manifestly unreasonable primarily because trial counsel did not interview Wendy and, therefore, his decision not to call her was based on inadequate information. According to the defendant, Wendy's testimony would have been beneficial in a case where the sole question for the jury was whether he or Sally was to be believed. The defendant also requested an evidentiary hearing. He argued that such a hearing was necessary to determine whether Wendy would have testified as she had in the first trial and to properly evaluate the benefit of such testimony.

In his memorandum of decision and order denying the new trial motion, the judge correctly observed, “[w]here a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant” (quotation omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015). The judge determined that the defendant had not met his burden. “Under the familiar Saferian test, a defendant is denied constitutionally effective assistance of counsel if the representation fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Kolenovic, supra, quoting Saferian, 366 Mass. at 96. If the defendant challenges a “tactical or strategic decision” by trial counsel, the defendant must demonstrate that “the decision was manifestly unreasonable when made” (quotation omitted). Kolenovic, supra at 674. “Whether to call a witness is a strategic decision.” Commonwealth v. Morales, 453 Mass. 40, 45 (2009).

Based on his review of the record, the judge concluded that trial counsel's reasons for not calling Wendy as a witness were not manifestly unreasonable. In addition, the judge found that, given the circumstances and trial counsel's concerns about the potential for Wendy to express hostility toward the defendant, it was not unreasonable for trial counsel to forgo interviewing her.

“[W]e review the denial of a motion for a new trial for a significant error of law or other abuse of discretion” (quotation omitted). Commonwealth v. Duart, 477 Mass. 630, 634 (2017), cert. denied, 138 S. Ct. 1561 (2018). We disagree with the judge's determination that trial counsel's decision not to interview Wendy was a reasonable one. In our view, the failure to attempt to contact Wendy and interview her amounted to conduct which fell “measurably below that which might be expected from an ordinary fallible lawyer.” Kolenovic, 471 Mass. at 673, quoting Saferian, 366 Mass. at 96. Counsel should have based his decision not to call Wendy on current reliable information and not on inferences he drew on his own from the situation. He could not know that she would be unhelpful. Further, where the result of the first trial, at which Wendy testified, was a hung jury, counsel's purported assessment of the value of having her as an alibi witness whose memory of that precise night might be challenged, and who had negative things to say about the defendant's late nights out drinking, versus the value of having no alibi witness at all, was not reasonable.

However, based on the record before us, we cannot determine whether the defendant has shown that he was deprived of a substantial ground of defense. See Kolenovic, 471 Mass. at 673; Saferian, 366 Mass. at 96. He submitted no affidavit from Wendy stating whether she was willing to testify, despite, according to the affidavits of the defendant and his new counsel, having diligently sought to contact Wendy prior to filing the new trial motion.⁸ For this reason, among others, Wendy's potential availability as an alibi witness should have been explored at an evidentiary hearing at which Wendy could be subpoenaed to testify. See Commonwealth v. Sullivan, 435 Mass. 722, 733 (2002) (“An evidentiary hearing [on a motion for a new trial] is required if the motion and affidavits raise a substantial issue”). We therefore remand the case for the sole purpose of such a hearing by which the judge may assess the potential and value of Wendy's testimony in order to reassess the motion for a new trial.

The judgments are affirmed. The order denying the motion for a new trial is vacated, and the case is remanded for an evidentiary hearing in accordance with this memorandum and order.

So ordered.

Affirmed in part; vacated in part and remanded.

FOOTNOTES

2.   This was the defendant's second trial. The first trial ended in a mistrial when the jury could not reach a verdict.

3.   The trial judge appears to have retired by the time the new trial motion was filed.

4.   Ordinarily, a claim of ineffective assistance of counsel should be raised by way of a motion for a new trial, not on direct appeal. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). We resolve the defendant's claim here because “the factual basis of the claim appears indisputably on the trial record” (quotation omitted). Id. at 811.

5.   We are not persuaded by the Commonwealth's argument that the comments at issue were a proper response to the defendant's closing argument.

6.   The defendant did not object to the substance of the instruction given and acknowledges that it complied with Commonwealth v. Toney, 385 Mass. 575, 585 (1982).

7.   We refer to Wendy Briddon by her first name for ease of reference.

8.   In his affidavit in support of his motion for a new trial, the defendant stated that he did not have Wendy's current contact information. The defendant's counsel also filed an affidavit in support of the motion in which she averred that she had attempted to contact Wendy using two telephone numbers that the defendant identified as being Wendy's former cell phone number and Wendy's father's telephone number. Counsel stated that she had left a voicemail for Wendy at each number. She also stated that she had left a message for Wendy, asking to speak with her, with Wendy's divorce attorney. By the time of the new trial motion, Wendy had not returned counsel's telephone calls.