Opinion
No. 10–P–1624.
2012-08-3
COMMONWEALTH v. Michael RUDY.
By the Court (VUONO, GRAINGER & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of various offences including assault with intent to rape, indecent assault and battery, open and gross lewdness, and providing alcohol to persons under the age of twenty-one. The defendant timely appealed and subsequently filed a motion for a new trial, which was denied by the trial judge without a hearing. On appeal from his convictions and the denial of his new trial motion, the defendant challenges the admission of multiple first complaint testimony and claims that the prosecutor exceeded the boundaries of proper cross-examination and closing argument. The new trial motion also asserts that the defendant received ineffective assistance of counsel. This claim is based primarily on the ground that trial counsel failed to inform the defendant of a reasonable plea offer. We affirm the convictions. However, because we conclude that the defendant was entitled to an evidentiary hearing on the issue whether trial counsel was ineffective by not informing him of the plea offer, we vacate the order denying the new trial motion on that ground, and remand the case to the Superior Court for an evidentiary hearing. Background. We briefly describe the evidence presented at trial. The two victims, whom we shall call Francesca and Greta, are nieces of the defendant. The events underlying the convictions occurred during a late night party at the defendant's apartment in Lowell on September 2, 2006. Francesca was twenty years old and Greta was fourteen years old at that time. By all accounts, copious amounts of alcohol were consumed by everyone including the defendant. Francesca and Greta each testified that the defendant sexually assaulted them at various times throughout the night and that they could not leave because the defendant took and hid Francesca's car keys, stating that she was too intoxicated to drive. Eventually, at about five o'clock in the morning, Greta retrieved the keys while the defendant was in the bathroom and the cousins were able to escape. There was evidence that the defendant subsequently apologized to both Francesca and Greta and told them he was drunk and could not remember what happened on the night in question. There was also evidence that, at another proceeding, Francesca denied that the defendant had assaulted her. She testified at trial pursuant to a grant of immunity.
The defendant was acquitted of two counts of indecent assault and battery and the judge allowed the defendant's motion for a required finding of not guilty on one count of assault with intent to rape.
Although the defendant submitted a consolidated brief, he presents most of his arguments in the context of the denial of his motion for a new trial. We nonetheless treat the defendant's arguments as raised both on direct appeal and in support of his motion for a new trial.
The names are pseudonyms.
The defendant denied the allegations. His theory of defense was to undermine the credibility of the victims, particularly Francesca, through cross-examination. He also presented testimony from two witnesses who had attended the party, both of whom maintained that the alleged events had not occurred.
1. First complaint testimony. Francesca's aunt (Greta's mother) and Greta's boyfriend were the designated first complaint witnesses for Francesca and Greta, respectively. Francesca disclosed the sexual abuse to her aunt about one week after the party. Greta told her boyfriend, who was at the party, that the defendant “touched” her sometime before she left with Francesca. The defendant contends that the trial judge should not have allowed either witness to testify because they were not the first persons to whom Francesca and Greta complained. Pointing to evidence that Francesca and Greta discussed the defendant's conduct as they plotted their escape, the defendant claims that the judge abused his discretion in permitting the aunt and the boyfriend to testify as first complaint witnesses. See Commonwealth v. King, 445 Mass. 217, 237–248 (2005), cert. denied, 546 U.S. 1216 (2006) (under the first complaint doctrine, generally only the individual to whom the complainant first complained of the sexual assault may testify as the first complaint witness).
As an initial matter, we note that Francesca did not provide any first complaint testimony. She testified about what she observed without recounting what Greta told her about the defendant's conduct. Greta, however, testified that she told Francesca that the defendant had assaulted her and that Francesca had responded by saying that the defendant had done the same or similar things to her. While Greta's testimony supports the defendant's assertion that the two victims first complained to each other, we discern no abuse of discretion in these circumstances.
This is not a case where the Commonwealth was permitted to choose its most effective witness. See Commonwealth v. Lyons, 71 Mass.App.Ct. 671, 673 (2008). Nor is this a case where the Commonwealth sought to introduce “a parade of multiple complaint witnesses.” See Commonwealth v. Stuckich, 450 Mass. 449, 457 n. 11 (2008). To the contrary, to the extent that there was additional complaint evidence, it enabled the jury “to make a fairer and more accurate assessment of the Commonwealth's case.” Commonwealth v. Arana, 453 Mass. 214, 229 (2009). Furthermore, our cases have consistently held that in cases like this one, where the defendant's trial strategy is to undermine the credibility of the victim, multiple complaint witness testimony has been deemed admissible to rehabilitate the victim's credibility. See Commonwealth v. Kebreau, 454 Mass. 287, 294–295 (2009). See also Mass. G. Evid. § 401–403 (2012).
See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010) ( “[W]hile the first complaint testimony prohibits the ‘piling on’ of multiple complaint witnesses, Commonwealth v. Murungu, 450 Mass. 441, 442–443 [2008], it does not exclude testimony that ‘is otherwise independently admissible’ and serves a purpose ‘other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations' ”) (citation omitted).
Our conclusion also disposes of the defendant's related argument made in support of his new trial motion that trial counsel was ineffective for not objecting when the aunt and boyfriend testified.
2. Cross-examination of defense witnesses. The defendant next contends that the prosecutor improperly challenged the credibility of two defense witnesses, Derrick Parker and Joshua Rosario, during his cross-examination. Both individuals had attended the party and testified that they had not observed any sexual contact between the defendant and his nieces. The prosecutor asked Parker whether the defendant had offered him money for his testimony, to which Parker responded that he had not. The Commonwealth points out, correctly, that there was a good faith basis to pursue this line of inquiry because there was evidence that other witnesses, including Francesca, had been offered money in exchange for favorable testimony.
There likewise was a good faith basis for asking Rosario whether the defendant's girlfriend had provided him with transportation during the course of the trial. Given that the defendant had provided this service for Rosario himself on a prior occasion (the defendant drove Rosario to and from a hearing in which Rosario was called to testify at the Sex Offender Registry Board), the prosecutor was entitled to examine Rosario on this issue. See Commonwealth v. Dixon, 425 Mass. 223, 226–227 (1997).
The defendant also raised this claim as a ground in support of his new trial motion. Because there was no error, the trial judge properly rejected the claim as a basis for allowing the motion for a new trial.
3. Closing argument. There is no merit to the defendant's contention that the prosecutor's closing argument amounted to an improper appeal to the jury's sympathies. Although the prosecutor highlighted Francesca's unfortunate circumstances, the comments were grounded in the evidence and served to illustrate Francesca's dependence on the defendant, with whom she was living, when he assaulted her. The defendant also contends that the prosecutor's suggestion to the jury that the verdict should inform the defendant that he had been “caught” and is “guilty” crossed over the line of permissible argument. While the comment was not artful, viewed in the context of the entire argument and in light of the judge's instructions, the comment does not rise to the level of prejudice required to justify a new trial.
4. Ineffective assistance. As we have noted, the defendant's primary argument in support of his claim that he received ineffective assistance of counsel is that trial counsel failed to inform him of a reasonable plea offer. On the basis of affidavits submitted by trial counsel, the defendant, the defendant's mother, and the prosecutor, the judge found that trial counsel had discussed a plea offer with the prosecutor, but failed to tell the defendant about the conversation. The judge observed that the defendant had the right to be informed of the plea offer, therefore, he concluded that the defendant had met his burden under the first prong of the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). However, the judge ultimately denied the motion because the defendant failed to meet his burden under the second prong of the test. Believing that the defendant, who maintained his innocence throughout the trial and at sentencing, would not have pleaded guilty, the judge concluded that the result of the proceeding would not have been different even if counsel had discussed the plea offer with the defendant.
The defendant argues that he was deprived of his right to counsel under both the State and Federal constitutions. The judge evaluated trial counsel's performance under the Federal standard, but we have applied the test set forth by the Supreme Judicial Court in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), because “if the Saferian test is met, the Federal test ... is necessarily met as well.” Commonwealth v. Licata, 412 Mass. 654, 661 n. 10 (1992), quoting from Commonwealth v. Fuller, 394 Mass. 251, 256 n. 3 (1985).
The judge also observed that the evidence against the defendant suffered from numerous infirmities and, as a result, it was a reasonable decision to try the case rather than plead guilty.
The defendant contends the judge abused his discretion by denying the motion without an evidentiary hearing because the affidavits raised a substantial issue. We agree. Ordinarily, we defer to the discretion of a trial judge on whether a motion for new trial requires an evidentiary hearing. See Commonwealth v. Goodreau, 442 Mass. 341, 348–355 (2004). Nonetheless, in the circumstances presented here, we believe it is in the interests of justice that the defendant's claim be resolved through an evidentiary hearing. As the judge noted, the affidavits, particularly the affidavit submitted by trial counsel, leave a number of questions unresolved, such as whether trial counsel had authority to engage in plea negotiations, and whether the plea offer was a reasonable one. Furthermore, trial counsel's failure to confer with the defendant about the plea offer may be explained by reasons that do not appear in the present record.
In short, in a case like this where the judge has determined that the first prong of the Saferian test has been met, further inquiry into the question whether the plea offer was reasonable and whether the defendant would have accepted it is required.
In so concluding, we emphasize that while the defendant has shown that he is entitled to an evidentiary hearing, he has not yet proved that he received ineffective assistance of counsel. That is a question for the trial judge on which we express no opinion. We hold only that the decision whether the defendant would have accepted the plea should be made after hearing testimony and making appropriate findings of fact. Therefore, we affirm the judgments, but vacate the order denying the defendant's motion for a new trial as it pertains to his argument of ineffective assistance based on counsel's failure to inform him of the plea offer. The case is remanded to the Superior Court for an evidentiary hearing consistent with this memorandum and order.
So ordered.