Opinion
19-P-982
06-30-2020
COMMONWEALTH v. DENNIS DELIBERO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Dennis Delibero, appeals from his conviction, after a Superior Court jury trial, of rape and abuse of a child, aggravated by an age difference of more than five years. G. L. c. 265, § 23A (a). The victim was the defendant's step-grandson, to whom we shall refer using the pseudonym Jim, and who was five years old when he reported the rape. The defendant also appeals from the trial judge's order denying the defendant's motion for a new trial. Dealing with the many issues on appeal in the order they are raised by the defendant, we affirm.
1. Allegedly false grand jury testimony. The defendant argues that the indictment was based on the false grand jury testimony of Detective Brian Cordeiro and therefore should have been dismissed. The defendant did not raise this issue until he filed his motion for a new trial, and thus, as the judge correctly ruled, the issue is waived by statute. G. L. c. 277, § 47A. Assuming that we nevertheless review for whether any presentation of false testimony created a substantial risk of a miscarriage of justice, cf. Commonwealth v. Holley, 476 Mass. 114, 120 (2016), we agree with the judge that there was none. Substantially for the reasons stated at pages 36-49 of the Commonwealth's brief, the defendant has not met his burden of showing that the Commonwealth knowingly or recklessly presented any false testimony to the grand jury, let alone that any errors in Cordeiro's testimony "probably influenced the grand jury's determination" to indict. Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986).
2. Prior bad act evidence heard by grand jury. The defendant argues that the indictment should have been dismissed because the Commonwealth improperly presented to the grand jury, through Cordeiro, certain evidence of the defendant's prior bad acts. These were that when the victim's mother, Gretchen, was fifteen or sixteen years old, she had caught the defendant (her stepfather) looking at her while she was changing clothes in her bedroom, and that when she was twenty years old, the defendant had "made a pass" at her. The defendant argues that this was unfairly prejudicial testimony that impaired the integrity of the grand jury under the standards recognized in Commonwealth v. Freeman, 407 Mass. 279, 282-284 (1990), and Commonwealth v. Vinnie, 428 Mass. 161, 173-175, cert. denied, 525 U.S. 1007 (1998). Because the defendant filed a pretrial motion to dismiss the indictment on these grounds, which was denied, we review for prejudicial error.
Although the prosecutor did not curtail Cordeiro's testimony on this issue shortly after it commenced, and Cordeiro was the sole witness before the grand jury -- factors weighing in favor of dismissal in Freeman, 407 Mass. at 283-284 -- we are unpersuaded that dismissal of the indictment was required here. The testimony was elicited in response to a grand juror's question to Cordeiro, asking whether Gretchen (whom Cordeiro had interviewed) had ever felt uncomfortable with the defendant when she lived with him as a teenager. Before allowing Cordeiro to answer, the prosecutor cautioned the grand jury that they could not use his answer in deliberating on the indictment. Cordeiro then answered the question in the affirmative, after which the prosecutor elicited the reasons for that answer by asking Cordeiro to confirm the details of his report recounting his interview with Gretchen. Cf. Commonwealth v. Wilcox, 437 Mass. 33, 37 (2002) (prosecutor's duty to present evidence "that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision").
Although the prosecutor may have elicited more details than were necessary for this purpose, "the defendant has not proved that the disputed statements, viewed in the context of all the evidence presented to the grand jury, probably made a difference in their decision to indict him" (quotation omitted). Freeman, 407 Mass. at 283. See Vinnie, 428 Mass. at 175. The defendant has mischaracterized some of Cordeiro's testimony; there was probable cause; the prosecutor, after eliciting the details from Cordeiro, repeated her caution to the grand jury; and we do not think that evidence of the defendant's sexual interest in his stepdaughter when she was fifteen or twenty years old would likely have made a difference in the decision to indict the defendant for putting his penis into a five year old boy's mouth over a decade later.
We do not accept the defendant's argument that Cordeiro's single, unexplained statement, "She did not feel comfortable," necessarily sufficed to inform the grand jury that Gretchen might be a biased witness. As the judge observed in denying the motion to dismiss, if the prosecutor had not inquired further, "we'd be here on another motion saying the Commonwealth didn't present this evidence that would have showed her bias . . . I think they presented the full picture . . . . " Also, contrary to the defendant's implication, the minutes do not indicate that the grand jurors were satisfied with Cordeiro's answer and thus that the prosecutor's further questions were gratuitous. Rather, before the grand jurors had any opportunity to ask further questions, the prosecutor herself began to elicit the details from Cordeiro.
The defendant claims that Cordeiro falsely told the grand jury that both the defendant and his wife (Gretchen's mother) had admitted to the defendant's prior bad acts. Rather, when read in context, Cordeiro's testimony was that Gretchen had told him that the defendant had admitted to the acts. Cordeiro further testified that Gretchen's mother (whom he had also interviewed) had told him (1) that the defendant had made a pass at Gretchen but had blamed his behavior on a laced drink and (2) that the defendant had once been outside Gretchen's bedroom when she was changing clothes, but was only listening, not looking. This accurately reflected Cordeiro's interview report, and the defendant's motion to dismiss did not allege that Cordeiro's testimony was false. The defendant first made this claim in his motion for a new trial, supported by affidavits from himself and his wife denying that either incident had occurred as the grand jury was told. The judge acted within his discretion in declining to credit those affidavits.
3. "'Taint motion." The defendant claims that a motion judge erred in denying, fifteen months before trial, the defendant's "taint motion" concerning whether to disqualify the victim, Jim, from testifying. The motion sought an evidentiary hearing to establish that Jim's memory of the alleged rape had become tainted and unreliable due to suggestive questioning by a Sexual Assault Intervention Network (SAIN) interviewer. Under Massachusetts law, whether Jim could testify is treated as a matter of his competency. See Commonwealth v. Allen, 40 Mass. App. Ct. 458, 461 (1996). Here, Jim was found competent to testify on two separate occasions, once seven months before trial by a separate motion judge, and again by the trial judge on the day Jim testified at trial.
On appeal the defendant also suggests that, even before the SAIN interview, Jim's memory might have been tainted by Gretchen's and her fiancé's biases, and that the motion judge "failed to account" for this possibility. But the defendant's taint motion raised no such claim, and counsel's passing comment at the nevidentiary motion hearing was insufficient to raise it. Additionally, so far as we can tell from the record before us, the defendant's motion for a new trial did not clearly raise this claim, either directly or under the rubric of ineffective assistance of trial counsel. Assuming that the issue is nevertheless before us, we see no substantial risk of a miscarriage of justice. The claim that Gretchen and her fiancé made unduly suggestive statements to Jim before the SAIN hearing is speculative at best.
The court in Allen also considered, however, whether the analysis in State v. Michaels, 136 N.J. 299 (1994), might warrant an evidentiary hearing on whether a child sexual assault victim's statements were the product of suggestive or coercive interview techniques and thus unreliable. Allen, 40 Mass. App. Ct. at 462-463. The defendant here asked the motion judge to follow the Michaels approach. Accompanying the defendant's motion was the report of a psychologist, which (1) discussed proper techniques for conducting forensic interviews of suspected child sex abuse victims, and then (2) stated that he had viewed the video recording of the SAIN interview of Jim and was "extremely concerned" about how it had been conducted. The judge denied the motion for an evidentiary hearing. She concluded -- after viewing the video and considering the psychologist's report, the analysis in Allen, and the factors discussed in Michaels -- that the defendant had not made a sufficient threshold showing that Jim's statements were the product of suggestive or coercive interview techniques.
Reviewing this ruling for prejudicial error, we see none. Based on the transcript of the interview, we conclude, as did the judge, that there was "no evidence of coercion, suggestion, or coaching of [Jim's] testimony deserving consideration of a taint hearing procedure." See Commonwealth v. Thibeault, 77 Mass. App. Ct. 419, 432 (2010). Moreover, "[i]n contrast to the [interviews challenged in Michaels], there was no vilification of the defendant, no incessant questioning, no references to statements made by [any] other complainant, and no use of threats, bribes, or cajoling." Allen, 40 Mass. App. Ct. at 462-463. The motion judge was not required, nor are we, to credit the psychologist's concerns, including that "[t]he interview was almost entirely made up of closed and leading questions, which were generally nonproductive." The interviewer's use of some focused, leading questions to draw five year old Jim's wandering attention back to the subject of the interview did not, in the judge's view or ours, create any substantial risk of unreliability. Thus, as in Allen, "[e]ven if we were to embrace the Michaels analysis, a matter that we do not reach today, it would not change the result, as the defendant's offer of proof did not reach the threshold required by Michaels to trigger a pretrial hearing." Allen, 40 Mass. App. Ct. at 462. See Thibeault, 77 Mass. App. Ct. at 432.
The video recording is not in the record appendix.
Findings based wholly on documentary evidence are reviewed without deference. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).
Nothing in our other citations to Michaels, infra, should be construed as adopting its reasoning to any greater extent than did the court in Allen.
4. In-court identification. The defendant argues that, at trial, Jim was erroneously allowed to identify him as the perpetrator, in violation of the rule that "[w]here an eyewitness [who was present during the commission of a crime] has not participated before trial in an identification procedure, [a court] shall treat the in-court identification as an in-court showup, and shall admit it in evidence only where there is 'good reason' for its admission" (citation omitted). Commonwealth v. Crayton, 470 Mass. 228, 241 (2014). Because the defendant did not object at trial, we review for whether any error created a substantial risk of a miscarriage of justice.
Despite the lack of objection, the trial judge initially asked whether allowing Jim to pick the defendant out in court was "essentially a showup, according to recent case law." The prosecutor then stated that Jim had in fact identified the defendant at a previous competency hearing before another judge. The trial judge appeared to accept that representation and expressed no further concern. Although the defendant now questions the accuracy of the prosecutor's representation and asserts that what occurred at the competency hearing was suggestive, our conclusion that Jim's trial testimony was permissible under Crayton makes it unnecessary to address those points.
We conclude that there was no error. "[T]here may be 'good reason' for the first identification procedure to be an in-court showup where the eyewitness was familiar with the defendant before the commission of the crime, such as where a victim testifies to a crime of domestic violence" (citation omitted). Id. at 242. "[W]here the witness is not identifying the defendant based solely on his or her memory of witnessing the defendant at the time of the crime, there is little risk of misidentification arising from the in-court showup despite its suggestiveness." Id. at 243. That is the case here.
Jim knew the defendant, who he called "Papa," before the rape occurred. The defendant and his wife (Jim's grandmother) had a child together, to whom we shall refer using the pseudonym Sara. Near the outset of his testimony, before any discussion of the rape, Jim was asked "who . . . lives with [Sara]," to which he replied "Grandma and Papa." Jim was then asked, "Do you see Papa here today," and replied, "Yes"; asked, "Can you point him out for us," and replied, "The one with the brown shirt . . . [r]ight there." The prosecutor asked that the record reflect that Jim had identified the defendant as Papa, and the judge agreed. Jim was then asked, "What do you call [Sara's] dad"; he replied, "Papa." The prosecutor then asked, "So is that man sitting over there, is that [Sara's] dad, Papa?" Jim replied, "Yeah."
Sara was fifteen years old at the time of trial.
The jury already understood from the Commonwealth's opening statement that the rape charge arose out of Jim's spontaneous disclosure to Gretchen (to which Gretchen later testified) that "Papa put his peepee in my mouth." Thus, Jim's testimony served to make clear whom it was that he referred to as Papa. Jim's testimony was within Crayton's "good reason" exception; it would have been "understood by the jury as confirmation that the defendant sitting in the court room is the person whose conduct is at issue rather than as identification evidence." Crayton, 470 Mass. at 242. It was only after Jim made clear who Papa was that Jim testified, in substance, that he used to visit Papa and Sara, but had not done so for some time, because Papa had done a "disgusting thing" with "his private . . . he peed in my mouth."
Although the defendant attempted to show at trial and in his motion for a new trial that there were other men Jim called Papa, the trial judge, in denying that motion, ruled that "the credible evidence presented at trial demonstrates the defendant was the only individual [Jim] called [P]apa." The judge expressly declined to credit the defendant's claim in his posttrial affidavit that there were other men Jim referred to as Papa. The judge also repeatedly declined to credit the posttrial affidavit submitted by the defendant's wife, which included a similar claim. We see no abuse of discretion or other error in these determinations, which are entitled to our "special deference." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Even if, contrary to our conclusion above, there was error in permitting Jim to identify "Papa" as he did at trial, the judge's conclusion makes us confident that there was no substantial risk of a miscarriage of justice.
5. Motion for a new trial. On appeal of a ruling on a motion for a new trial, we review for "a significant error of law or other abuse of discretion," and we "extend[] special deference to the action of a motion judge who was also the trial judge," as was the case here. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). To prevail on his claims of ineffective assistance of counsel, the defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We address the defendant's claims seriatim.
a. Taint motion. The defendant's motion for a new trial asserted that the judge who denied the pretrial taint motion had done so in reliance on certain erroneous statements made by the prosecutor. Those statements concerned the circumstances under which, before the SAIN interview, Jim first disclosed the alleged rape to Gretchen and her fiancé. The defendant argued that the motion judge's adoption of the prosecutor's statements, which the Commonwealth now concedes were incorrect, rendered the judge's ruling erroneous, and that trial counsel was ineffective for failing to seek reconsideration of the ruling on that basis. We do not agree.
The judge, in reciting the circumstances of Jim's initial and entirely spontaneous disclosure, did so only as background that had no bearing on the issue presented: whether the SAIN interviewer had later used techniques that might have tainted Jim's memory. The judge's adoption of the Commonwealth's factual error was immaterial to and in no way called into question her reasoning in denying the taint motion. The trial judge correctly concluded, in denying the motion for a new trial, that a motion for reconsideration calling attention to the Commonwealth's mistaken representations would have been unlikely to succeed. Nor would it have accomplished anything material for the defense. Thus counsel was not ineffective in failing to file such a motion. See Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016).
The defendant also faults trial counsel for not having presented, in support of the taint motion, evidence suggesting (1) that the defendant was not the Papa to whom Jim was referring when he made his initial disclosure, and (2) that certain facts presented by the prosecutor at the taint motion hearing, regarding a sleepover Jim had at the defendant's house, were incomplete or inaccurate. Again, the defendant has not explained how these points were material to the taint motion, which focused on the SAIN interviewer's techniques. Counsel was not ineffective for not having raised these points.
b. Failure to renew taint motion. The defendant next claims that counsel should have renewed the taint motion based on several additional items of evidence that Jim had been "subjected to influences well-known to corrupt a child's memory." We conclude that this evidence, even considered as a whole, would not have amounted to a showing sufficient to obtain an evidentiary taint hearing on whether to preclude Jim from testifying, and thus counsel was not ineffective for not filing a renewed motion for such a hearing.
First, the defendant points to Jim's testimony at a pretrial competency hearing, eighteen months after the SAIN interview, in which Jim suggested that the defendant had done a "bad" or "disgusting" thing and also that the defendant might have lied. The defendant claims this shows that other persons (possibly Jim's mother) had "vilified" the defendant to Jim -- "vilification" being one of many interview techniques that the Michaels court concluded, based on a host of scholarly articles, could contribute to rendering a child's statements unreliable. Michaels, 136 N.J. at 309-312. See Allen, 40 Mass. App. Ct. at 462-463. But the defendant asks us to reason backwards -- to conclude that Jim's statements alone show that he had previously been subjected to the equivalent of improper interview techniques, even though the defendant cannot identify what was said to Jim, let alone that it was said in a context comparable to an investigative interview such as the ones at issue in Michaels and Allen. We decline to engage in such speculative reasoning, unsupported by any expert evidence specific to this case or any citations to a substantial body of scholarly articles supporting such reasoning.
Second, the defendant points to posttrial affidavits filed by himself, his wife, and their daughter Sara regarding a conversation nine months after Jim's initial disclosure. The affidavits stated that (1) Sara had asked Jim to come to a sleepover (at her house where she lived with the defendant), (2) Jim replied that he was not allowed to, (3) Sara asked why, and (4) Jim replied that his father had told him that "Papa did mean things to [him]" (referring to Jim). The judge, in denying the motion for a new trial, declined to credit these affidavits, as was within his discretion. Moreover, for the reasons already discussed, Jim's comment does not establish "vilification."
Third, the defendant points to Gretchen's pretrial testimony that, after the SAIN interview, she had asked Jim "which Papa it was." The defendant characterizes this conversation between Jim and his mother as a "private interview," which was "unrecorded" and conducted by a person biased against the defendant. Because the judge did not discuss this evidence in denying the motion for a new trial, the defendant asks us to review it independently. See Commonwealth v. Alcide, 472 Mass. 150, 159 (2015). We have carefully reviewed Gretchen's pretrial testimony about this conversation, as well as her related testimony about her showing Jim photographs of various family members and asking him to say their names. Considered in light of the indicia of improper interviewing techniques discussed in Michaels and Allen, as well as the passage the defendant cites from Commonwealth v. LeFave, 430 Mass. 169, 178 (1999), we conclude that Gretchen's testimony raises no concern about leading or coercive questioning sufficient to warrant an evidentiary hearing. Counsel thus was not ineffective for failing to seek such a hearing.
Finally, the defendant points to Jim's statement, apparently in response to a question from the prosecutor during an interview eight months or more before trial and then repeated with a detective present, that the defendant had put his "pee-pee" in Jim's mouth more than once. Jim had earlier told the SAIN interviewer that it had happened only one time. The defendant argues that Jim's later statement was made "under circumstances well known to irredeemably corrupt a child's memory." Even if we accepted that argument -- which is supported by nothing more than a discussion of the Michaels factors -- it would go only to that particular statement and would not have supported a motion to preclude Jim entirely from testifying at trial. Counsel was thus not ineffective for failing to file a renewed taint motion on this basis. To the extent the defendant argues that counsel should have sought to exclude this single statement as tainted, the judge concluded, for several reasons, that allowing Jim to testify to the same effect at trial (as Jim did) did not deprive the defendant of a substantial ground of defense. We see no abuse of discretion in that conclusion.
c. Failure to present "taint" evidence at trial. The defendant argues that trial counsel was ineffective in failing to present at trial the evidence assertedly showing, as discussed in part 5.b immediately above, that Jim's testimony was tainted. For substantially the reasons stated by the judge on the issue of counsel's failure to renew the taint motion, and the other reasons discussed above and infra, we are unpersuaded that counsel was ineffective in not putting this evidence before the jury.
In particular, the defendant presents no expert affidavit suggesting that "vilification" could be inferred from Jim's testimony at the pretrial competency hearing or from Jim's alleged statement to Sara about why he was not allowed to sleep over at her house. Nor are we persuaded that, without expert evidence, the jury would have viewed Jim's pretrial testimony and statement to Sara as showing that Jim's trial testimony was tainted; this was not a substantial ground of defense. Similarly, having carefully reviewed Gretchen's pretrial and trial testimony regarding her question to Jim about "which Papa it was," we are not persuaded that, had counsel further explored the circumstances of that question, he would have accomplished anything material for the defense. See Lally, 473 Mass. at 703 n.10. Finally, had counsel elicited testimony about the allegedly suggestive circumstances under which Jim had informed the prosecutor that the defendant had put his "pee-pee" in Jim's mouth more than once, counsel would have drawn substantial additional jury attention to this point, about which Jim's own testimony was confined to a single brief statement. This would more likely have hurt than helped the defense.
The psychologist's report submitted in support of the original taint motion did not discuss the concept of "vilification" under that or any other label, and the report was limited to the effect of proper and improper conduct of forensic interviews. It did not discuss the effect of isolated comments by a victim's family members. Similarly, the psychologist's expert testimony at trial did not address this latter issue, nor is there any indication that he would have done so if asked.
The defendant argues that counsel should have elicited testimony from his expert witness, the psychologist, that Gretchen's discussions with Jim were impermissibly suggestive. But there is no posttrial affidavit from the psychologist, nor any suggestion in his pretrial report or trial testimony, that he would have testified as the defendant now speculates.
d. Failure to present evidence of witness coaching. The defendant's motion for a new trial argued that counsel was ineffective in failing to present evidence that, as Jim waited in a room outside of the court room just before he testified at trial, a woman was overheard telling Jim to "remember it's the man in the brown jacket." (Jim indicated in his testimony that the defendant wore a brown shirt on that day of the trial.) The defendant supported his motion with affidavits from himself, his mother, and a friend of his wife's, all stating that they had heard this alleged coaching. The defendant's, his mother's, and his wife's affidavits stated that the defendant called the matter to the attention of trial counsel, who replied that he could not make any use of the overheard comment.
The trial judge, in denying the motion for a new trial and the request for an evidentiary hearing, declined to credit any of these affidavits. This was within the judge's discretion. "A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial, and may evaluate them in light of factors pertinent to credibility, including bias, self-interest, and delay." Commonwealth v. Torres, 469 Mass. 398, 403 (2014). See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003) (defendant's affidavit); Commonwealth v. Savage, 51 Mass. App. Ct. 500, 506 (2001) (defendant's wife's affidavit). The judge stated additional reasons for rejecting the claim. These included that Jim's victim-witness advocate filed an affidavit stating that she recalled no such coaching and that, if she had heard any, she would have stopped the speaker and instructed that he or she could not discuss such a matter. The judge also stated that Jim had identified the defendant from the witness stand not simply by describing his clothing, but by stating whom he lived with. The defendant has not shown any error or abuse of discretion in the judge's decision that counsel was not ineffective on this issue.
Posttrial counsel also filed an affidavit, stating (1) that she had asked trial counsel about the coaching issue (among many others); (2) that trial counsel had replied that he did not recall the defendant or anyone else informing him of this alleged coaching incident, and that had he been so informed he would have confronted whoever was responsible; and (3) that trial counsel had agreed to provide an affidavit setting forth his responses to various inquiries, but had not yet done so at the time the motion for a new trial was filed. In denying the motion, the judge noted that trial counsel "did not provide any statement regarding [Jim] being 'coached,'" and then referred to the established rule that a "judge may take into account the suspicious failure to provide pertinent information from an expected and available source." Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). It is unclear whether the judge overlooked posttrial counsel's affidavit or, instead, declined to consider trial counsel's hearsay statements contained in that affidavit. See id. at 353-354 (judge may ignore hearsay contained in affidavits). We conclude that the point does not call into significant question the judge's decision rejecting the coaching-based ineffective assistance claim. We do so having considered the defendant's reliance on Commonwealth v. Martinez, 86 Mass. App. Ct. 545 (2014). The judge here in no way treated "the lack of an affidavit [from trial counsel as] a talisman that, by itself, defeats a claim of ineffective assistance of counsel" (emphasis added). Id. at 551.
The defendant's affidavit stated that he had heard the victim-witness advocate's voice in the waiting room with Jim, but that the coaching was done by a woman with a different voice. The victim-witness advocate's affidavit stated that, as a general matter, she is not always waiting with a victim, but may have to be in other parts of the court house. She stated no specific memory of whether she was with Jim just before he testified on the day in question.
We add that we do not share the defendant's view that the transcript of Jim's testimony "fully corroborated" the coaching claim. The prosecutor asked Jim, "Do you see Papa here today? Can you point to him?" The defendant intimates that Jim did not answer either question but instead said only, "The one with the brown shirt." The defendant omits that, immediately afterward, Jim said, "Right there," suggesting that he indicated in some manner where Papa was sitting.
e. Failure to call defendant and his wife as witnesses. The defendant argues that counsel was ineffective in failing to call him and his wife as witnesses at trial. He supported this claim with his own and his wife's affidavits stating their willingness to testify and, at least implicitly, describing how they would have testified. The judge acted within his discretion in declining to credit these affidavits.
We comment in particular on the defendant's principal claim: that, had he and his wife testified, they would have said that, at the time of Jim's disclosure, he used the term "Papa" to refer to the two other grandfather figures in his life, Robert Silvia and Mark Raffa, thereby suggesting to the jury that Jim's rape allegation referred to one of those men rather than the defendant. The defendant argues that this testimony would have been important because Silvia testified in the Commonwealth's case-in-chief that Jim never called him just "Papa" and always called him "Papa Bob." And Raffa, although testifying as a defense witness, resisted the suggestion that Jim had ever called him anything other than "Granddad."
In a sidebar during Raffa's testimony, counsel told the judge that he had a witness, Gus Santos, ready to testify to impeach Raffa. Immediately following Raffa's testimony (in which he ultimately acknowledged, reluctantly, that Jim "could have" called him Papa), Santos testified that he had observed Raffa stating, in an interview the preceding week, that Jim had called him Papa.
The judge was entitled to view skeptically the defendant's claim in his affidavit about how he would have testified. Significantly, the defendant's and his wife's affidavits also described a note the defendant had given to trial counsel, after the close of the Commonwealth's case, to state some "concerns." The first of these was: "Re: my taking the stand. If Mark [Raffa] and Bob [Silvia] took the stand, wouldn't it seem odd that I didn't." The other "concerns" pertained to statements in Gretchen's testimony about the defendant, which the note explained to counsel (in some detail) were untrue, and which the defendant was presumably prepared to contradict if called to testify. If the defendant had likewise been prepared to contradict Robert Silvia's testimony that Jim called him "Papa Bob" instead of simply "Papa," and Mark Raffa's testimony that Jim never called him anything but "Granddad," one would have expected the defendant's note to suggest that approach, as it did with respect to Gretchen. Instead the note suggested only that for him not to testify after Silvia and Raffa had done so could create an unfavorable contrast. For this additional reason, the judge could well have doubted that, at the time of trial, the defendant had told counsel that he was prepared to testify that Jim used the term "Papa" to refer to Silvia and Raffa.
The note itself was submitted as an attachment to posttrial counsel's affidavit.
As for counsel's decision not to call the defendant's wife as a witness, the judge concluded that this decision was not manifestly unreasonable when made, given, among other factors, her vested interest in the outcome of the case. See Commonwealth v. Adams, 374 Mass. 722, 728 (1978). We see no abuse of discretion or other error in that conclusion, and the cases the defendant cites in challenging it do not assist him. In Commonwealth v. Lane, 462 Mass. 591 (2012), the court deferred to a trial judge's conclusion, in allowing a motion for a new trial, that it was manifestly unreasonable for counsel not to call an important, "apparently credible and totally disinterested witness," id. at 596, because of "trivial inconsistences" in the witness's likely testimony. Id. at 597. To similar effect is Commonwealth v. Hill, 432 Mass. 704, 718-719 (2000), which affirmed a motion judge's conclusion that it was manifestly unreasonable not to call an important and "apparently impartial witness," id. at 718, because of "minor problems with his testimony." Id. at 719.
f. Failure to seek dismissal of indictment. The defendant argues that counsel was ineffective for failing to move to dismiss the indictment as having been obtained through the use of perjured testimony. As explained in part 1 supra, any presentation of false testimony did not create a substantial risk of a miscarriage of justice. This disposes of the claim of ineffective assistance of counsel based on the same theory. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.4 (2002) ("The test in . . . Saferian . . . and the substantial risk of a miscarriage of justice test are, substantively, two sides of the same coin").
g. Failure to object to in-court identification. The defendant argues that counsel was ineffective for failing to object to Jim's in-court identification. As explained in part 4 supra, it was not error to permit the identification, and thus not ineffective for counsel not to object.
The defendant also argues in perfunctory fashion that he was entitled to an evidentiary hearing on his motion for a new trial. The judge denied that request, specifically with respect to the allegations of witness coaching, see part 5.d supra, on the ground that he did not credit the defendant's supporting affidavits and thus no such hearing was necessary. On appeal, the defendant neither identifies any error or abuse of discretion in that reasoning nor makes any particularized argument as to why such a hearing was warranted.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Sacks, Singh, & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 30, 2020.