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Appeals Court of Massachusetts.



Decided: April 26, 2021

By the Court (Sullivan, Desmond & Singh, JJ.1)


Following a jury trial, the defendant was convicted of one count of rape and acquitted of one count of rape. The defendant subsequently moved for a new trial arguing that his trial counsel was ineffective for failing to impeach a witness for the prosecution with evidence that the witness and the defendant had previously been in a sexual relationship. The motion judge, who was also the trial judge, denied the defendant's motion after an evidentiary hearing. We affirm.

Background. The victim and the defendant's wife, Hilary Dinitto,2 were coworkers at the British International School of Boston. On the afternoon of August 3, 2013, the victim went to Hilary and the defendant's home in Medway. During the day, the victim and Hilary went to get pedicures, then later began preparing for a night out at a local bar where the defendant and his band planned to play at an “open mic night.” At trial, the victim testified that, before leaving the house to go to the bar, she consumed approximately four or five alcoholic beverages.

The victim, Hilary, the defendant, and the defendant's bandmates arrived at the bar at approximately 7:30 p.m. There, they sat down at a table, drank alcohol, and listened to live music.3 Eventually, they were joined by two other women, including Melissa Shaw, with whom the defendant asserts he once had a sexual relationship and who, by August 3, 2013, was just beginning to date one of the defendant's bandmates.4 The defendant's band did not ultimately perform at the open mic night. The group left the bar at approximately 12:30 a.m. and returned to the defendant and Hilary's home to play music and continue drinking alcohol.

Once back at the house, the defendant's band set up in the basement and played music, and the victim and Hilary continued to pour cocktails.5 At some point, one of the defendant's bandmates passed out on the couch, and two of the women, including Shaw, left the house. The defendant, Hilary, the victim, and another one of the defendant's bandmates returned upstairs. The victim changed into her pajamas, vomited in the bathroom, and sat with Hilary on the couch in the living room. Feeling “really drunk,” the victim laid down and ultimately fell asleep on the couch.

The victim later woke up to the defendant on top of her with his penis inside of her vagina. The victim asked the defendant, “what the fuck are you doing,” pushed the defendant off her body, and then passed out again on the couch. After falling back asleep, the victim again woke up to the defendant on top of her with his penis inside of her vagina. The victim again asked, “what the fuck are you doing” and pushed the defendant off a second time. This time, the victim sat up and realized that she did not have any clothing on the bottom half of her body, and that her shirt had been lifted above her chest around her armpits. She got up from the couch, pulled her clothes on, left the living room, and went to one of the guest bedrooms. She contemplated leaving but recognized that she was too intoxicated to drive her vehicle, and instead fell asleep in that bedroom. The victim woke up early the next morning and drove home, without telling Hilary what the defendant had done.

That same day, the victim reported the assault to her neighbor, and the following day, she went to the hospital to be treated. Several weeks later, the victim and Hilary returned to work from their summer break, and Hilary approached the victim, stating that the defendant told her “what happened.” At this point, Hilary was under the impression that the defendant and the victim had engaged in consensual sex. In response, the victim informed Hilary that she had gone to the hospital because the defendant had raped her. The victim ultimately reported the rape to the police eight months later in April 2014.

At trial, Shaw was called as a witness for the prosecution. She testified that, after the incident, she had a conversation with the defendant on Facebook messenger.6 During that conversation, the defendant told her that he had sex with the victim under the mistaken impression that the victim was his wife. Shaw, however, testified that the Facebook messenger conversation no longer existed because she had since deleted it. Shaw did not disclose the existence of this conversation until 2017 after it had already been deleted.

Discussion. The defendant filed a motion for a new trial, arguing that his trial counsel was ineffective for failing to impeach Shaw at trial with evidence that they had previously been in a sexual relationship and that Shaw was jealous of his current relationship with his wife. After an evidentiary hearing, the judge denied the defendant's motion. We review the denial of a motion for new trial for “a significant error of law or other abuse of discretion.” Commonwealth v. Millien, 474 Mass. 417, 429 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

“To prevail on a motion for a new trial claiming ineffective assistance of counsel, a defendant must show that ․ ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer,’ and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Millien, 474 Mass. at 429-430, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We grant “special deference to the rulings of a motion judge who was also the trial judge.” Commonwealth v. Alcide, 472 Mass. 150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014).

When the basis of a claim for ineffective assistance is a strategic choice by counsel, the defendant must demonstrate that the “strategic choice was ‘manifestly unreasonable.’ ” Commonwealth v. Hudson, 446 Mass. 709, 716 (2006). “Generally, failure to impeach a witness does not amount to ineffective assistance of counsel.” Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). “Furthermore, absent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion.” Id.

The defendant contends that jealousy is an obviously powerful form of impeachment that his trial counsel “inexplicably failed to employ.” However, trial counsel testified, and the judge credited, that there was not any objective evidence that Shaw was in fact jealous of the defendant and his marriage to Hilary.7 To the contrary, the evidence reflected that Shaw and the defendant were friends. Indeed, as noted above, Shaw testified that she met with the defendant for coffee just a few months prior to trial.

With this in mind, trial counsel anticipated that, if he sought to cross-examine Shaw about her prior sexual relationship with the defendant, the Commonwealth would establish their continued friendship on redirect, which would then bolster the credibility of her testimony. As a result, after consulting with his supervisor at the Committee for Public Counsel Services, trial counsel determined that the better form of cross-examination would be to challenge the accuracy of Shaw's account of the Facebook messenger conversation and highlight the suspect nature of it having been deleted. This decision was plainly informed by the circumstances known to trial counsel, and the fact that counsel “selected certain avenues of impeachment, and did not exhaust every conceivable further avenue, does not mean that counsel was ineffective.” Commonwealth v. Horton, 434 Mass. 823, 836 (2001). The motion judge concluded that trial counsel's strategic decision was not “manifestly unreasonable,” and we discern no abuse of discretion in that conclusion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion as decision that “falls outside the range of reasonable alternatives”).

Order denying motion for new trial affirmed.


2.   Because Hilary Dinitto and the defendant share a last name, we hereinafter refer to Hilary by her first name to avoid confusion.

3.   The victim testified that she consumed approximately five alcoholic beverages while at the bar.

4.   Shaw and the defendant remained friends after their relationship ended.

5.   The victim testified that she consumed four or five more alcoholic beverages at the house.

6.   Shaw also testified that, consistent with their continued friendship, she and the defendant met for coffee just a few months before trial.

7.   In the defendant's affidavit, which was submitted with his motion, he averred that Shaw was jealous of his relationship with his wife. However, at the hearing, trial counsel recalled that, at the time of trial, the defendant was not definitively sure that Shaw harbored any jealousy. Rather, he suggested that Shaw may be jealous as a reason to explain why she was testifying against him at trial.

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