Opinion
21-P-979
11-07-2022
COMMONWEALTH v. YOONSANG BAE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in 2019, the defendant, Yoonsang Bae, was found guilty of one count of rape. In this consolidated appeal from the defendant's conviction and the denial of his motion for a new trial, we consider the defendant's arguments that the trial judge erroneously considered an incorrect standard of proof, that defense counsel provided ineffective assistance of counsel, and that the motion judge abused his discretion by not conducting an evidentiary hearing on the motion for a new trial. Discerning no error, we affirm.
Discussion.
1. Proper standard of proof.
The defendant claims that the judge did not properly instruct himself on the Commonwealth's burden of proving the lack of consent by the victim to having sexual intercourse and the defendant's knowledge of the victim's incapacitation. Here the prosecution's theory at trial was that the victim lacked the ability to consent to intercourse since she was incapacitated because of her intoxication. Under this theory, the Commonwealth bears the burden of proving beyond a reasonable doubt that the victim was so impaired from the consumption of alcohol that she was incapable of consenting to sexual intercourse, and that the defendant knew, or reasonably should have known, that the victim's condition rendered her incapable of consenting. See Commonwealth v. Blache, 450 Mass. 583, 595 n. 19, 597 (2008). Because the defendant did not object or raise the issue at trial "we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).
We presume that, in a jury-waived trial, a judge has instructed himself correctly on the law. See Commonwealth v. Healy, 452 Mass. 510, 514 (2008). This presumption, however, will not be applied in cases "where the record indicates otherwise." Commonwealth v. Urkiel, 63 Mass.App.Ct. 445, 451, (2005). Relying on a single side bar comment made by the judge, the defendant contends that the record here supports his contention that the judge failed to recognize the proper burden of proving lack of consent. We disagree.
After the close of evidence, the judge conducted a discussion at side bar that was referred to as a "charge conference," and included a discussion of the impact of intoxication on consent. At one point the judge commented, "The law that I'm aware of . . . assuming that Mr. Bae knew she was intoxicated, would render . . . her . . . unable to consent if she was intoxicated." The defendant contends that this statement does not accurately set forth the Commonwealth's burden to establish that: (a) the victim was sufficiently incapacitated to be unable to consent to sexual intercourse, and (b) the defendant knew of the victim's incapacitation. Relying on the judge's comment, the defendant essentially argues that he has rebutted the presumption that the judge had instructed himself properly on the law. However, upon a thorough review of the entire record we are satisfied that the judge properly instructed himself on the law. The comment by the judge was not a final ruling of law regarding the proof necessary to establish lack of consent during the trial. The side bar discussion included comments and questions by the judge that resulted in responses by the attorneys that appear to be attempts to persuade the judge to apply certain rulings of law. "Comments made by a judge in colloquy with counsel, particularly when counsel are permitted to carry on for the purpose of persuading the judge, are not taken as tantamount to a ruling of law by the judge." Commonwealth v. Colon, 33 Mass.App.Ct. 3 04, 308 (1992). Additionally, during the side bar discussion, case decisions and model jury instructions that contained the proper standard of proof were referenced and the judge said he would consider them as part of his deliberation. Moreover, in his decision on the defendant's motion for new trial the judge was clear that he applied the correct standard of proof necessary to show lack of consent during his deliberations. We discern no error let alone a substantial risk of a miscarriage of justice.
2. Ineffective assistance of counsel.
Next the defendant contends that trial counsel was ineffective because (a) trial counsel pursued a theory of defense that was not viable, and (b) trial counsel failed to call witnesses that could have rebutted the Commonwealth's case. "We review a judge's denial of a motion for a new trial for 'a significant error of law or other abuse of discretion.'" Commonwealth v. Alcide, 472 Mass. 150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "Where, as here, the motion judge was also the trial judge, the decision of the motion judge is entitled to special deference." Commonwealth v. Barnette, 45 Mass.App.Ct. 486, 493 (1998) .
The burden is on the defendant, Commonwealth v. Henry, 88 Mass.App.Ct. 446, 452 (2015), to demonstrate that his counsel's performance "[fell] measurably below [that] which might be expected from an ordinary fallible lawyer," and that counsel's failure "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When the record demonstrates a strategic basis for counsel's course of action, we "'conduct our review with some deference . . . and ask whether the decision was manifestly unreasonable when made.'" Commonwealth v. Gomes, 478 Mass. 1025, 1026 (2018), quoting Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016). Here, the judge concluded that counsel's decision to proceed with a defense of mistake of identity and to not challenge the victim's degree of intoxication was not manifestly unreasonable. The judge's conclusion was supported by the record and was not an abuse of discretion. The victim's testimony about her drinking throughout the evening and the effects the alcohol had on her provided ample evidence of her incapacity. Additionally, the defendant's testimony corroborated the victim on the details of her intoxication. Furthermore, the judge understood the defendant's defense to be that the defendant's intoxication prevented him from discerning that the victim was incapacitated and unable to consent. Where, as here, the motion judge was also the trial judge and the fact finder, the decision of the motion judge is entitled to special deference because he is in a unique position to shed light on the effect of any deficiencies in counsel's performance. See Barnette, 45 Mass.App.Ct. at 493 (1998) .
Nonetheless, even if we were to assume that the first prong of Saferian had been met because counsel's use of the defense of mistake of identity "[fell] measurably below [that] which might be expected from an ordinary fallible lawyer", this did not deprive the defendant of an otherwise available, substantial ground of defense. The record contained significant evidence to support the defense that the defendant was not aware of the victim's inability to consent. Also, the judge's ruling on the motion for a new trial stated that "[i]t was clear to [the judge] at trial . . . the crux of the defense was that Mr. Bae was too intoxicated to discern whether [the victim] was likewise too intoxicated to give consent." Where the defendant was not deprived of the defense that he contends he had been deprived of, we discern no abuse of discretion in the judge's denial of the defendant's motion for a new trial.
3. Evidentiary hearing.
Finally, the defendant claims the judge abused his discretion by not conducting an evidentiary hearing on the motion for a new trial. The decision whether to hold an evidentiary hearing on a motion for a new trial is "left largely to the sound discretion of the judge." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). An evidentiary hearing is required only where a 'substantial issue' has been raised." Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).
"Particularly where, as here, the motion judge was also the trial judge, the judge's finding that the defendant's motion and affidavit did not raise a substantial issue is entitled to substantial deference." Commonwealth v. Wallis, 440 Mass. 589, 596 (2003). We discern no abuse of discretion in the judge's determination that the motion did not raise a substantial issue. The judge's decision relied on his observations and understanding of the evidence and the theories of the prosecution and the defense. He identified how the defendant's reliance on his intoxication related to the defense of the defendant not being able to understand that the victim was too intoxicated to consent to sexual intercourse. Further, the judge's decision analyzed the defendant's affidavits in support of his new trial motion and the judge determined that the expert witness and the witness who was present earlier in the evening would have little probative value regarding the victim's level of intoxication and would not have affected his verdict. Finally, the judge found no merit in the argument that trial counsel was ineffective for failure to use the rape kit evidence to challenge the victim's credibility and determined that this evidence likewise would not have affected his verdict. "[T]he judge could properly use his knowledge and evaluation of the evidence at trial in determining whether to decide the motion for a new trial without an evidentiary hearing." Id. at 596. We conclude that the judge did not abuse his discretion in deciding the motion for a new trial without an evidentiary hearing.
Judgment affirmed.
Order denying motion for new trial affirmed.
Lemire, Singh & Englander, JJ.
The panelists are listed in order of seniority.