Opinion
No. 10–P–1089.
2013-10-1
COMMONWEALTH v. Jorge QUINTANILLA.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Jorge Quintanilla appeals from his convictions for statutory rape, rape, assault and battery by means of a dangerous weapon, and assault and battery and the denial of his motion for a new trial. The motion for a new trial was based on a claim that the defendant was deprived of the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and article 12 of the Massachusetts Declaration of Rights because his trial attorney pursued a destructive strategy in that he failed to object to highly prejudicial hearsay from several witnesses and failed to investigate a series of witnesses who the defendant told him would contradict the Commonwealth's witnesses in important respects. The motion was considered and denied by the trial judge on the basis of a margin endorsement as follows: “For the reasons stated in the Commonwealth's opposition, this motion is denied without a hearing.” For the reasons that follow, we vacate the order denying the motion for a new trial and remand the case with directions that the judge conduct a hearing and make findings of fact. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).
Discussion. 1. Denial of the motion for a new trial without a hearing. Under rule 30(b), a judge may allow a motion for a new trial at any time “if it appears that justice may not have been done.” If a substantial question is not raised by the defendant's motion and any accompanying affidavits, the judge is not required to conduct a hearing. Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). Whether a substantial question is raised is a matter left to the sound discretion of the judge. We give considerable deference to the judge's decision when as in this case she presided over the trial. Commonwealth v. Downey, 58 Mass.App.Ct. 591, 595 (2003). Nonetheless, judicial discretion is cabined by the requirement that when the issues raised by the motion are serious and find support in the record, the judge is required to conduct a hearing and possibly an evidentiary hearing. An adequately supported claim of ineffective assistance of counsel raises “an issue of constitutional importance” that qualifies as a serious issue for purposes of a rule 30(b) analysis. Commonwealth v. Denis, 442 Mass. 617, 629 (2010).
The requirement that the judge who hears the motion for a new trial make findings of fact is particularly important in cases like this in which the issues raised by the defendant involve the availability and credibility of a witness or witnesses, and the weight of the evidence.
2. Substantial issues raised by defendant's motion for a new trial. At the outset, we recognize that the judge faced a difficult problem in this case because from the beginning of the trial defense counsel made tactical decisions that the judge correctly recognized as risky and potentially harmful to his client's interests. The judge acted prudently in calling sidebar conferences at several stages to alert defense counsel to the risks he was taking and the consequences that might result from actions taken in response by the Commonwealth. The judge recognized that defense counsel's mistakes with respect to the rule that hearsay evidence offered for its truth creates a risk of a subsequent ineffective assistance of counsel claim. The response made by defense counsel throughout the course of this trial was that his strategy was to let all the evidence offered by the Commonwealth into the case in order to illustrate that the complainant's testimony was too incredible to be believed. Even crediting such an approach as strategic, it was not necessary and not helpful to his stated goal to allow the Commonwealth to offer as much confirming and corroborative hearsay as it offered in this case and it does not address his failure to investigate the availability of witnesses who could testify on the basis of first-hand knowledge and contradict aspects of the Commonwealth's case.
The judge also was required to admonish defense counsel for asking questions that mischaracterized the evidence. Other questions posed by defense counsel were successfully objected to by the Commonwealth because there was no good faith basis for them. The judge also found it necessary at one point to ask defense counsel in the presence of his client that the absence of an objection to damaging hearsay testimony from Ms. Flores “was a strategic calculated tactic. You want the jury to understand the incredibility of what is alleged.”
We understand that a judge faced with a situation like this after the trial begins has limited options. Nevertheless, when as in this case the judge denies a motion for a new trial without a hearing and simply refers to what is contained in the Commonwealth's opposition, our duty to conduct an independent review on appeal precludes us from supplying reasons the judge might have supplied in her findings of fact to justify her conclusion that the defendant's claims are insubstantial.
Among the several issues raised by the defendant's motion, there are at least three which qualify as substantial in the context of this case and which, because they are adequately supported by the record, must be addressed by the judge at a hearing. First, the Commonwealth's evidence was that the defendant raped the complainant at her sister's house in Winthrop in 2004 when she was only thirteen years old. The sister's discovery that the complainant had sexual relations with the defendant led to a family meeting. Reportedly, the complainant's family felt she had disgraced them, and, as a result, her family essentially sold her to the defendant. There was testimony by the complainant that she was held as a prisoner for nearly four years by the defendant and his mother in their home in Somerville and allowed to go out only to run errands for the defendant. She testified that between the ages of thirteen and eighteen she was physically and sexually abused, including sexual intercourse by force and against her will. She testified that the defendant allowed other men to have sex with her for money and that his mother periodically gave her injections of some type of birth control medicine from El Salvador and had cameras installed in the Somerville home to monitor her whereabouts.
Failure to call certain witnesses. The day before jury selection, defense counsel provided the Commonwealth and the court with a witness list containing seven witnesses including the defendant's mother, brother, and sister-in-law and the complainant's father, ex-stepmother, and two half-sisters. Defense counsel said he was unable to comply with the court's order that he provide addresses and dates of birth for these witnesses by the following morning because he was “on a short leash” and making a “very last minute decision” about whether to call them. Affidavits from five of these witnesses who state they were never contacted by defense counsel are attached to the defendant's motion for a new trial along with affidavits from nine other persons who claim to have relevant, firsthand knowledge that would have contradicted aspects of the Commonwealth's case. Defendant's claim that his trial counsel was ineffective because he failed to investigate, interview, and call some or all of these witnesses must be explored at a hearing. The Commonwealth's bald assertion in its opposition that these witnesses are not credible is speculation at this stage and inadequate to support the judge's conclusion that the issue is not substantial. Without the benefit of findings of fact as required by rule 30(b), the abuse of discretion standard which is a mark of the deference shown by appellate courts to the determination by the judge who tried the case that the defendant was not prejudiced is not applicable.
The Commonwealth called four witnesses: the complainant, Sergeant Michael Mulcahy, Beatrice Morales, and Elida Flores, a friend of the defendant's mother. The defendant did not testify and did not call any witnesses.
The result we reach does not alter the proposition that the ultimate burden of proof on a motion for a new trial remains with the defendant who must show that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974).
Failure to object to prior statements made by the complainant. Second, the defendant's claim that his trial counsel was ineffective because he elicited testimony from Sergeant Mulcahy about statements made by the complainant prior to trial after being informed by the judge that he was opening the door to the Commonwealth offering all of the complainant's out of court statements, including the videotaped SAIN interview which was admitted and which served to reinforce the complainant's trial testimony, must be explored at a hearing.
Failure to object to hearsay. Third, defendant's claim that his trial counsel was ineffective for failing to object to the admission of hearsay testimony from Sergeant Mulcahy, Ms. Morales, a customer at the hair salon owned by the defendant's mother, and Ms. Flores, a friend of the defendant's mother, as well as numerous hearsay statements attributed to the complainant, and other evidence that should have been objected to as more prejudicial than probative, especially statements reportedly made by the complainant that the defendant's mother was injecting her with birth control medication obtained in El Salvador, and testimony by Sergeant Mulcahy that he accompanied the complainant to obtain a restraining order against the defendant, must be explored at a hearing.
Conclusion. In light of the seriousness of the claims of ineffective assistance of counsel raised by the defendant and the adequacy of his showing, this was not a case in which the judge had discretion to deny the defendant's motion for a new trial without a hearing. This is a case in which the judge must make findings of fact in addressing the defendant's arguments. For these reasons, the order denying the motion for a new trial is vacated and the matter is remanded for further proceedings not inconsistent with this memorandum and order. See Commonwealth v. Meggs, 30 Mass.App.Ct. 111, 114–115 (1991); Commonwealth v. Moreau, 30 Mass.App.Ct. 677, 683 (1991).
So ordered.