Opinion
No. 11–P–261.
2013-01-31
COMMONWEALTH v. Delmer H. TRUESDELL.
By the Court (MEADE, SIKORA & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a four-day trial, a Superior Court jury convicted the defendant of two counts of rape of a child, G.L.c. 265, § 23; two counts of indecent assault and battery on a child under fourteen, G.L.c. 265, § 13B; one count of open and gross lewdness, G.L.c. 272, § 16; one count of posing or exhibiting a child in a state of nudity, G.L.c. 272, § 29A; four counts of possession of child pornography, G.L.c. 272, § 29C; seven counts of possession of firearms without a firearms identification card, G.L.c. 269, § 10; and six counts of improper firearms storage, G.L.c. 140, § 131L.
The convictions contested on appeal involve the defendant father's sexual offenses against his daughter in their home. Specifically, the jury heard evidence that the defendant masturbated in front of the victim, told her to touch his penis, took pictures of her naked, directed her to put toys inside of her buttocks and vagina, and licked her vagina. The defendant appeals on three grounds: (1) that his defense counsel was constitutionally ineffective; (2) that Massachusetts courts should routinely conduct a taint hearing to address allegations of improper preparation of a child witness; and (3) that the trial judge unreasonably restricted cross-examination of the victim's mother, Donna. For the following reasons, we affirm. Analysis. 1. Ineffective assistance of counsel. The defendant properly raised his ineffective assistance of counsel claim by a motion for a new trial pursuant to Mass.R.Crim .P. 30(b), as appearing in 435 Mass. 1501 (2001). The motion judge, however, was not the trial judge. So while we do not give the motion judge “special deference,” we still review his decision for a “significant error of law or other abuse of discretion.” Commonwealth v. Murray, 461 Mass. 10, 21 (2011), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Further, “[t]he decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802 (2000).
The defendant stipulated to the firearm convictions at the conclusion of the evidence.
Under these standards, we apply the following two-part test to determine whether the defendant deserves a new trial by reason of attorney error: (1) whether the performance of counsel fell below the standard of an “ordinary fallible lawyer,” and (2) whether any misstep deprived the defendant of “an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We consider whether there is “some showing that better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Finally, we give deference to defense counsel's trial strategy and tactics unless any decisions were “manifestly unreasonable.” Commonwealth v. White, 409 Mass. 266, 272–273 (1991).
Here, the defendant alleges three instances of ineffective assistance of counsel. The first two contentions challenge defense counsel's failure to call two witnesses. One would have been Ruth Weld, a neighbor. The second would have been an expert capable of challenging the allegedly suggestive questioning during the victim's sexual abuse intervention network (SAIN) interview. Finally, the defendant alleges that the aggregate effect of three additional decisions by trial defense counsel amounted to ineffective assistance.
a. Omission of neighbor Weld. The attorney's decision to forgo Weld's testimony fails to rise to the level of manifest unreasonableness. During the posttrial hearing, the Commonwealth demonstrated that defense counsel perceived at least two risks from Weld's testimony. First, Weld observed the victim arrive at her house with boots and no socks immediately after the charged principal sexual assault, which occurred on a snow day. Weld's testimony to that circumstance would have supported the inference that the child had recently been naked and alone with her father. Second, trial defense counsel feared that cross-examination of Weld would trigger a latent bias or anger toward the defendant's wife Donna because Donna had permitted Weld's young granddaughter to visit the defendant's home while Donna might have been suspicious of the defendant's conduct toward children.
Defense counsel weighed these risks against two possible gains. First, Weld saw that the victim behaved normally immediately after the defendant had allegedly sexually abused her. But Donna testified to this fact, so Weld's description would have been cumulative. Further, Weld knew that the defendant could not operate a digital camera, a circumstance which might create doubt that the defendant took the lewd pictures. This theory, however, was inconsistent with other evidence that the victim actually took the pictures.
Defense counsel applied the above cost-benefit analysis and made a reasonable tactical decision. Reviewing courts will not second-guess these arguable tactical decisions from the perspective of hindsight. Commonwealth v. Drumgold, 423 Mass. 230, 262 (1996). Since defense counsel's decision was not manifestly unreasonable, his performance did not fall below the constitutional requirements of an ordinary fallible lawyer. See Saferian, supra; White, supra.
b. Omission of an expert witness. It was not manifestly unreasonable for defense counsel to fail to consult with, or call to testify, an expert on child interview techniques. In fact, the testimony of the victim, her therapist, and Trooper Riley all supported the theory that the victim's second SAIN interview was rehearsed or suggested. For example, the evidence showed that the victim “practiced” for the second SAIN interview, and defense counsel stressed that she had met with the therapist twenty-six times. This evidence also preceded Trooper Riley's testimony that the first SAIN interview had resulted in “no overt disclosures,” a result contrasting with other evidence that the second SAIN interview generated more inculpatory allegations.
Although defense counsel asked the therapist only one question, it appeared to be a targeted effort to emphasize the frequency of the therapist's meetings with the victim before the second SAIN interview.
In sum, defense counsel used means other than an expert to introduce this theory. He did not overlook the issue of suggestive preparations. He argued it specifically and clearly in his opening and closing. Consequently, his work neither fell short of the performance of an ordinary fallible lawyer nor deprived the defendant of a substantial ground of defense. See Saferian, 366 Mass. at 96.
c. Aggregate claims of ineffectiveness. The defendant's additional claims of substandard work include: (1) stipulation to the firearm charges at the close of the evidence and shortly before jury deliberation; (2) ineffective cross-examination of the victim about the discrepancies between her SAIN interviews and her trial testimony; and (3) failure to object to the prosecutor's leading questions of the victim. These contentions are without merit.
First, during the posttrial hearing, the defense attorney offered two explanations for the defendant's stipulation to the firearm charges. He reasoned that admission to these inescapable charges could earn favor with the jury. Moreover, his cross-examination of Donna revealed that she owned one of the unregistered guns and that the Commonwealth did not charge her with a weapons violation. This evidence permitted defense counsel to argue that the Commonwealth gave Donna preferential treatment. See Commonwealth v. Hill, 432 Mass. 704, 716–717 (2000) (preferential treatment of a government witness in return for that witness's testimony is relevant to show bias).
Second, the record shows that defense counsel did in fact cross-examine the victim about inconsistencies. Even if an attorney neglects to impeach a witness, there is no ineffective assistance of counsel absent a “failure to pursue some obviously powerful form of impeachment.” Commonwealth v. Smith, 456 Mass. 476, 485 (2010).
For example, the defendant on appeal complains of a failure to exploit the victim's inconsistencies about her father's encouragement to insert a hockey stick into her buttocks, but the record illustrates that defense counsel addressed this issue with her.
Third, leading questions are generally permissible when a prosecutor examines a child witness. Commonwealth v. Lamontagne, 42 Mass.App.Ct. 213, 217–218 (1997). Moreover, the record demonstrates that the victim answered open-ended questions and explained the allegations. Any of the prosecutor's leading questions were appropriate for this nine year old witness.
d. Lack of prejudice. Even if we assume that any of the decisions by defense counsel were manifestly unreasonable, introduction of any of the omitted evidence would not have “accomplished something material for the defense.” Satterfield, 373 Mass. at 115. Defense counsel still presented a key defense—the victim's induced and rehearsed allegations. More importantly, the Commonwealth's proof was overwhelming.
The defendant's own statement to Trooper Riley anchored the Commonwealth's case and corroborated the victim's allegations. He admitted to (i) walking around the house naked; (ii) allowing the victim to engage in “sex play,” which included spreading her legs, sitting on a ball, and putting a hockey stick in her buttocks; (iii) discussing “sex play” so she would know the “parameters and the boundaries” of her future sexual drive; (iv) allowing her to touch his penis “[t]wo or three” times; (v) continuing to masturbate (and ejaculate) in front of the victim after she walked in on him because “if she wants to see it for a minute, hey”; and (vi) kissing the victim's “hand near her vagina.” After the jury received the photographic evidence, they had overwhelming evidence available to convict.
Trooper Riley recovered two cameras during his search, one of which contained pictures of someone's buttocks and a prepubescent female vagina. The defendant admitted to being able to operate this camera.
The present case is also distinguishable from Commonwealth v. Baran, 74 Mass.App.Ct. 256 (2009). First, in Baran, only the Commonwealth introduced expert testimony, so it was the “sole purveyor of expert medical and psychological evidence.” Id. at 277. No such disparity exists in this case since neither side called an expert. Second, the absence of a defense expert in Baran deprived the defendant of “perhaps his only possible defense.” Id. at 278. Here, however, the defendant also presented Donna's significant financial and emotional motives to impugn the defendant.
This court in Baran also found five other instances of error by counsel, which we considered in the aggregate to fall below the minimum State and Federal constitutional requirements of counsel. Baran, 74 Mass.App.Ct. at 279–294.
Overall, the performance of the defendant's attorney did not deprive him of a substantial ground of defense. Saferian, supra. The motion judge therefore committed no error of law or abuse of discretion when he denied the defendant's motion for a new trial. Murray, 461 Mass. at 21.
2. Taint hearing. The defendant urges us to adopt as standard procedure the conduct of a taint hearing after the defendant makes a threshold showing that a child has been subjected to suggestive interview techniques. See State v. Michaels, 136 N .J. 299, 317–321 (1994). We decline the invitation for such a categorical response. Instead, we continue to employ an individualized competency determination for a child witness's testimony. Commonwealth v. Thibeault, 77 Mass.App.Ct. 419, 423–424 (2010) (Massachusetts courts apply “a two-prong test” for competency: [1] the witness's capacity to “observe, remember, and give expression” to events which the witness has “seen, heard, or experienced” and [2] a comprehension of the difference between truth and falsehood and an appreciation that falsehood will result in punishment). See Commonwealth v. Allen, 40 Mass.App.Ct. 458, 462–464 (1996) (“pretrial taint hearing” unnecessary when a defendant's offer of proof does not reach a certain threshold).
Here, the defendant failed to demonstrate the need to examine the victim's competency further. If the defendant were to make a showing that her competency might be in question, then the trial judge would have the sound discretion to explore the issue. The defendant did not request any pretrial hearing or otherwise develop such a showing.
The defendant raised this issue as part of his posttrial motion for a new trial. The motion judge's ruling noted the victim's apparent competency. Further, the defendant presented evidence that the victim “practiced” her testimony, and so gave the jury the opportunity to evaluate her credibility in light of the therapy sessions. See Allen, 40 Mass.App.Ct. at 463–464.
3. Limitation of cross-examination. The defendant contends finally that the trial judge inappropriately limited the defendant's cross-examination of Donna. The judge did not abuse his discretion. See Commonwealth v. Tam Bui, 419 Mass. 392, 400 (1995) (within judge's discretion to limit the cross-examination of a witness). The defendant wanted to inquire about collateral matters. We cannot say that the judge's limitation constituted an abuse of discretion. Ibid.
Specifically, the defendant wanted to elicit testimony of (1) Donna's workplace stress and her resulting plan to pursue both a divorce and the removal of the victim from the area and (2) instances where the victim told false stories.
See Commonwealth v. LaVelle, 33 Mass.App.Ct. 36, 39 (1992) ( “[S]pecific acts of prior misconduct of the witness ... not material to the case ... cannot be shown by ... extrinsic evidence to affect ... credibility”), quoting from Liacos, Massachusetts Evidence 149 (5th ed. 1981 & Supp.1985). See also Commonwealth v. Chase, 372 Mass. 736, 747 (1977) (“Extrinsic evidence on a collateral matter may be introduced at trial for the purposes of impeachment only in the discretion of the judge”).
Judgments affirmed.
Order denying motion for new trial affirmed.