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Appeals Court of Massachusetts.



Decided: November 12, 2021

By the Court (Meade, Desmond & Ditkoff, JJ.1)


After a jury trial, the defendant was convicted of rape of a child without force.2 The defendant filed a motion for new trial,3 which was denied by the trial judge after a nonevidentiary hearing. On appeal, he claims that: trial counsel provided ineffective assistance for not utilizing a forensic expert; the prosecutor's closing argument was improper; and the judge's jury instruction on rape was erroneous. We affirm.

1. Ineffective assistance of counsel. The defendant claims that his trial counsel was ineffective for failing to “consult a forensic scientist in a case that turned largely upon forensic evidence.” In particular, he claims that counsel failed to present alternative theories to explain the deoxyribonucleic acid (DNA) evidence, such as “secondary transfer of saliva and/or touch DNA.” We disagree.

We review the denial of a motion for a new trial for “ ‘a significant error of law or other abuse of discretion,’ Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting ‘special deference’ to the rulings of a motion judge who, like the judge here, also presided at trial.” Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). To prevail on his claim of ineffectiveness of counsel, the defendant must show that: (1) counsel's conduct fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) that this conduct likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Where, as here, the claim is that defense counsel committed a tactical error, the defendant must demonstrate that defense counsel's tactical judgment was manifestly unreasonable.” Commonwealth v. Finstein, 426 Mass. 200, 203 (1997). It is the defendant's burden to prove ineffective assistance. Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015); Commonwealth v. Montez, 450 Mass. 736, 755 (2008).

Here, defense counsel's strategy was to focus on the victim's credibility rather than bringing attention to the forensic evidence. At the same time, counsel did not ignore the forensic evidence, but rather he focused less on the corroborating results of the DNA, which were damaging to the defendant, and directed his attention to the inconsistencies in the statements made by the victim.4 The strategy of attacking a victim's credibility in a rape case is not manifestly unreasonable and is used frequently. See Commonwealth v. Kebreau, 454 Mass. 287, 300-301 (2009). In particular, counsel focused on: (1) the victim's “inconsistencies and discrepancies” of the events at issue; (2) the inconsistencies between the victim's testimony and that of the police officer witnesses, the Sexual Assault Nurse Examiner (SANE), and her math teacher; (3) his investigator's testimony regarding the victim's false statement made on social media; and (4) the donut shop's surveillance video to contradict the victim's account of what had occurred there.

Relative to forensics, the Commonwealth introduced DNA evidence collected from a genital swab from the victim that matched the defendant's DNA. Despite the damaging nature of this evidence, defense counsel minimized the impact of this evidence by eliciting on cross-examination of a forensic chemist that her tests did not reveal the presence of any seminal fluid. Counsel combined this with the fact that the chemist screened only for amylase, which can be found in saliva, urine, feces, and breastmilk. He later argued in his closing that although the amylase could be consistent with the Commonwealth's case, there was reasonable doubt because it was also consistent with the defendant's claim that all he did was kiss and lick the victim's breasts. In the end, the jury's acquittal of the defendant of the penile rape was likely based on counsel's creating reasonable doubt.

The defendant's suggestion that an expert was necessary to counter the only credible evidence at trial is without merit. As the motion judge held, the jury could not have convicted the defendant without finding some of the victim's testimony credible. In addition, the defendant claims that a forensic scientist would have helped to further impeach the Commonwealth's expert on the limitations of the external genital swab test, which indicated saliva may have been present. However, as the motion judge noted, “[g]enerally, [the] failure to impeach a witness does not amount to ineffective assistance of counsel.” Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Moreover, counsel did effectively impeach the Commonwealth's expert witnesses, eliciting the fact that the positive saliva swab test was only an indicator that saliva was possibly present, rather than a definitive confirmation of its presence. Also, in its opposition to the new trial motion, the Commonwealth provided an affidavit from its expert, in which she stated that the more thorough confirmatory testing was in fact done in this case, and that the test confirmed that saliva was present on an external genital swab.

The defendant also claims that an expert could have told the jury that the presence of saliva in the victim's genital area could have been the result of an indirect transfer, and that there was no evidence presented as to the strength of the positive result of the saliva test. We agree with the motion judge's sound conclusion that neither contention would have affected the jury's verdict, given that the saliva transfer theory is purely speculative, see Commonwealth v. Watson, 455 Mass. 246, 256 (2009), and the inculpatory weight of the positive saliva test was that saliva was found in the victim's genital area, not the amount of saliva present. Accordingly, counsel's conduct did not fall measurably below that which might be expected from an ordinary fallible lawyer, and the decision to not call an expert witness was not manifestly unreasonable. See Finstein, 426 Mass. at 203.5

2. Closing argument. The defendant also claims that the prosecutor mischaracterized the evidence by stating that a Commonwealth expert determined that saliva was found on the victim's external genital area. We disagree.

The defendant did not object to the prosecutor's closing argument, but he nonetheless claims the preserved error standard of review applies under the resurrection rule because the motion judge considered the claim on the merits. See Commonwealth v. Hallet, 427 Mass. 552, 554-555 (1998). The short answer to this assertion is that the resurrection rule was abrogated sixteen years ago in Commonwealth v. Bly, 444 Mass. 640, 649-651 (2005). As a result, we review for error, and if any, whether that error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).6

A Commonwealth expert testified that the defendant's DNA was detected from a swab of the victim's genital area. Regardless of her later qualifying remarks, she testified that the test result “indicates the presence of saliva.” The initial amylase testing indicated that saliva may have been present in the victim's genital area. The prosecutor's argument that the saliva was there, as the motion judge correctly determined, was a reasonable inference from the evidence. See Commonwealth v. Rakes, 478 Mass. 22, 45 (2017) (“Closing argument must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence”). There was no error, and thus, no risk that justice miscarried.7

3. Jury instruction. Finally, the defendant claims that the jury instruction concerning rape was incorrectly given, and it may have allowed the jury to convict the defendant on a definition of unnatural sexual intercourse that was too broad. There was no objection to the instruction at trial. So again, we review for error, and if any, whether that error created a substantial risk of a miscarriage of justice. Randolph, 438 Mass. at 297.

The trial judge instructed as follows: “Unnatural sexual intercourse includes oral and anal intercourse, including fellatio and cunnilingus and any other intrusion of a part of a person's body or other object into the genital, oral, or anal opening of another body.” The defendant claims the “any other intrusion of a part of a person's body” phrase rendered the definition too broad. According to the defendant, the judge's instruction could have permitted the jury to conclude that the definition included “open mouth kissing with the tongue, or sucking a breast,” which there was evidence of presented at trial. We disagree.

Throughout the trial, the jury were told that that there were three charges before them, and for clarity, the judge differentiated the charges on the verdict slips: “penile vaginal,” “digital vaginal,” and “mouth on vaginal area” penetration. To the extent there was any error in the judge's wording, it occurred in a single sentence within twenty-four pages of instruction. When we review the instructions as a whole, we interpret them as would a reasonable juror. See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). A reasonable juror would not interpret the judge's instruction in the manner offered by the defendant, especially in light of the charges themselves -- none of which included kissing or mouths on the victim's breasts -- and the verdict slips. Indeed, it was made plain to the jury that rape required penetration. There was no error.8 The denial of the motion for new trial and the request for an evidentiary hearing was not an abuse of discretion.

Judgment affirmed.

Order dated February 22, 2018, denying first motion for new trial affirmed.

Order dated July 16, 2020, denying second motion for new trial affirmed.


2.   The defendant was found not guilty of two other counts of rape of a child without force.

3.   This was the defendant's second motion for new trial. His first motion was denied without a hearing. The defendant also appealed from the order denying his first motion; however, he waived argument relating to that order in his brief.

4.   The defendant claims that we presume ineffective assistance when counsel does not call an expert witness, where the Commonwealth's case is supported by forensic evidence, particularly where that support is significant. This is not correct, and the cases upon which the defendant relies are not to the contrary. See Commonwealth v. LaBrie, 473 Mass. 754 (2016); Commonwealth v. Lang, 473 Mass. 1 (2015); Commonwealth v. Baker, 440 Mass. 519 (2003); Commonwealth v. Martin, 427 Mass. 816 (1998); Commonwealth v. Haggerty, 400 Mass. 437 (1987); Commonwealth v. Baran, 74 Mass. App. Ct. 256 (2009).

5.   Given the defendant's failure to establish the first prong of the Saferian test, we need not reach the second prong. In any event, for the reasons stated in the Commonwealth's brief at 36-44, the defendant failed to establish prejudice, and was not entitled to an evidentiary hearing.

6.   The defendant also did not raise this claim in his first motion for new trial, which too renders it waived. See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001).

7.   As the motion judge noted, in support of its opposition to the motion for new trial, the Commonwealth submitted an affidavit from its expert stating that the confirmatory testing was done in this case, and it confirmed the presence of saliva. In this light, even if the argument was not a fair inference, it did not create a substantial risk of a miscarriage of justice.

8.   We similarly find no merit to the defendant's claim that the verdict slip was overbroad because the specific phrase of “vaginal area” is similar to the term “external genital area.” However, the verdict slip stated “penetration” for the mouth on vagina area charge. Also, the SANE explained the difference between the two phrases. When this evidence is considered with the entirety of the judge's instructions, it is apparent that the defendant's concern is unfounded.

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