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Appeals Court of Massachusetts.



Decided: April 08, 2021

By the Court (Wolohojian, Englander & Hand, JJ.1)


The defendant appeals from his convictions, after a bench trial, of three counts of indecent assault and battery on a person over the age of fourteen in violation of G. L. c. 265, § 13H, and one count of assault and battery in violation of G. L. c. 265, § 13A. The defendant is a lawyer, who met the victim only once, when he appeared in court on behalf of a bank that had foreclosed on the victim's home. The defendant thereafter indecently assaulted the victim, both inside and outside the court house. On appeal he argues (1) that his defense counsel was ineffective, due to the way that counsel began the victim's cross-examination, and (2) that a text message received by the victim, purportedly from the defendant, was improperly admitted in evidence. We affirm.

Background. In 2015, the victim was living with her youngest son in a home in Agawam. The home had been foreclosed upon, but the victim was fighting to stay in the home. In November of 2015 she went to the Westfield District Court for a hearing in the postforeclosure eviction case. The victim was not represented by counsel, and had never been to the court house before. The defendant represented the foreclosing bank at the hearing. The victim had not met the defendant previously. When the victim's case was called, the defendant asked the judge for time to confer with the victim.

The victim and the defendant then spoke in the court house lobby. The conversation began professionally, but after a while the defendant began asking personal questions, and putting his hand on the victim's thigh. After going back into the court room to ask for a continuance, the defendant insisted on walking the victim to her car, which was parked in a nearby parking lot. Once at the car, the defendant assaulted the victim, including trying to kiss her, and touching various of her private parts.

The victim got the defendant off her, and drove away. It was “somewhere around 11:00” in the morning when she left the parking lot. The victim testified that moments after she left, she received a text from the defendant that said, in substance, “that he trusted what happened would stay between the two of us.” She testified that she responded to the text, after which she received another text from the defendant. The victim called her nephew as she was driving home. Her nephew was a lawyer, whom the defendant had mentioned he was acquainted with during the conversation at the court house. The victim subsequently forwarded both texts from the defendant to her nephew.

The nephew testified as a first complaint witness. During his testimony he presented a printout of a text message he received from the victim, which was admitted for a limited purpose, over objection. The text message had on it a phone number, and a time stamp of 10:33 a.m. on November 19, 2015. It stated: “[a]nd I assume our parking lot encounter is just between us ․”

Discussion. 1. The ineffective assistance argument. After the victim's direct testimony, defense counsel began his cross-examination as follows:

“And I really apologize in advance for having to do this again. I know it's traumatic.”

On appeal the defendant argues that this statement constituted ineffective assistance of counsel. He contends that where the defense necessarily was that the events in question did not happen, defense counsel's introductory statement “impl[ied] disbelief” in his client's defense, and was “tantamount to an admission of his client's guilt.” See Commonwealth v. Triplett, 398 Mass. 561 (1986). The defendant emphasizes in particular that defense counsel acknowledged that testifying was “traumatic” for the victim, which the defendant equates with a concession that the victim's testimony was truthful. We are not persuaded.

To begin, and as the defendant candidly acknowledges, his ineffective assistance argument is in its “weakest form” where, as here, it is asserted for the first time on direct appeal. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006), citing Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Since the issue was not presented through a motion for new trial, there was no opportunity for input from trial counsel regarding his strategy and tactics, and no opportunity for the trial judge to address the significance (or lack thereof) of the claimed error by counsel. See Peloquin, supra.

In any event, we do not agree that the cross-examination, read as a whole, fell “measurably below [the performance] expected of the ordinary, fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). To the contrary, after his opening remark defense counsel went on to cross-examine the victim aggressively, and at length. He made the point, for example, that although there were other people both inside and outside the court house, the victim did not raise an objection to others at the time, and he also made the point that the victim did not go to the police until several months after the assault. This cross-examination was competent, and consistent with counsel's role as a zealous advocate.

We note as well that this was a bench trial. The judge of course was very familiar with counsel's role, and highly unlikely to understand counsel's introductory statement on cross-examination as a concession of the defendant's guilt. See Commonwealth v. Holman, 27 Mass. App. Ct. 830, 833 (1989). Indeed, the statement itself -- apologizing in advance for a difficult cross-examination -- is a not uncommon tactic. Although perhaps inartful, we certainly cannot say that a new trial is required as a result, all the more so where the issue was not presented to the judge on a motion for new trial.

2. The text message. The defendant next argues that the text message was not properly authenticated, because there was no evidence that the defendant was the author. See, e.g., Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). The defendant points out, correctly, that there was no evidence as to his phone number, and no evidence that he bore any relationship to the phone number shown on the text. Nor was there anything about the text that directly identifies the defendant as the author. The problem with the defendant's argument, however, is that at the time the text was admitted, the victim had already testified that he (“the defendant”) had sent her a text moments after the assault, and had also testified to the contents of the text. The victim's testimony came in substantively, without objection, and the contents to which she testified largely matched the text that was admitted. Her testimony thus both authenticated the text as coming from the defendant, and rendered the text itself cumulative. See Mass. G. Evid. § 901(b)(11) (2021). Finally, the text was only admitted for the limited purpose of showing that the nephew had sent an email containing the text message to police investigators. See Commonwealth v. King, 445 Mass. 217, 219 (2005) (first complaint witness's testimony only admitted for limited purpose of corroborating victim's account); Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 91-92 (2021) (judge acting as fact finder has broader discretion to admit evidence “because we recognize that judges are less likely to be unduly swayed by potentially inflammatory evidence”). There was no error under the circumstances.

Judgments affirmed.

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