Opinion
12-P-1289
01-16-2015
COMMONWEALTH v. DOUGLAS D. WALSH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Douglas D. Walsh, was convicted of indecent assault and battery on a child under the age of fourteen and accosting or annoying a person of the opposite sex. On appeal, the defendant argues that it was error to deny his motion for a new trial, that there was insufficient evidence to support a conviction of accosting or annoying a person of the opposite sex, and that the prosecutor's closing argument was improper. We affirm.
At the same trial, the defendant was acquitted of indecent exposure and of a second count of indecent assault and battery on a child under the age of fourteen.
Discussion. Ineffective assistance of counsel. The defendant filed a motion for a new trial arguing that trial counsel was ineffective. The motion record included the trial transcript, the police report concerning the first interview with the victim, the transcript of a later interview of the victim, and an affidavit of the defendant's appellate counsel, who was not trial counsel. The motion judge, who was also the trial judge, denied this motion.
The defendant argues this denial was error because the motion record establishes that trial counsel's failure to impeach both the victim and the first complaint witness with prior inconsistent statements was ineffective. Primarily, the defendant alleges that competent counsel would have highlighted, through either cross-examination or calling another witness, two discrepancies: (1) that in the first interview neither the victim nor the first complaint witness told the police that during the couch incident the defendant touched the victim's thigh, and (2) that the victim's testimony at trial was the first time she indicated that during the couch incident the defendant was "breath[ing] differently, like off and kind of heavily," and was shaking.
"Counsel is ineffective when his or her performance falls 'measurably below that which might be expected from an ordinarily fallible lawyer,' and the substandard performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant bears the burden of proving each prong of this test. Sullivan, supra. "Generally, failure to impeach a witness does not amount to ineffective assistance of counsel." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). "Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations," as to which the court shows deference. Ibid. The record does not include an affidavit from trial counsel indicating that these were not strategic decisions. Furthermore, the judge identified strategic reasons why defense counsel may not have wanted to use the victim's prior statements concerning these incidents to impeach her and instead attempted using other methods of impeachment. Finally, the impeachment available was not that either witness said that the incidents did not occur but instead that the witnesses did not include in interviews with the police all of the details provided in their later trial testimony. This was not an "obviously powerful form of impeachment." Ibid. There was no error in denying the motion for a new trial.
The trial judge noted that defense counsel may have been concerned that if he impeached the victim with prior inconsistent statements, then the Commonwealth might have attempted to establish that the bulk of her testimony had remained consistent from interview to interview or that discussing the breathing on cross-examination would encourage the jury to focus on the victim's testimony that the defendant breathed differently when the defendant "interacted" with her, including during the couch incident and the basement incident. The trial judge further noted that based on the dynamics at trial, "defense counsel did . . . use a reasonable approach in his efforts to impeach the young and sympathetic complainant by focusing on the reasonableness of her interpretation of the defendant's actions."
As to other claimed inconsistencies that counsel is alleged to have failed to exploit, the defendant's showing fails substantially for the reasons stated in the Commonwealth's brief at pages 21-24.
Sufficiency of the evidence. The defendant argues there was insufficient evidence to convict him under G. L. c. 272, § 53, as appearing in St. 2009, c. 27, § 98, which states in relevant part: "[P]ersons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex . . . shall be punished." "'[O]ffensive' and 'disorderly' are separate and distinct elements, and the Commonwealth must prove both beyond a reasonable doubt to satisfy its evidentiary burden." Sullivan, 469 Mass. at 625. Both elements use an objective standard. Ibid. We review the evidence supporting each element using the often-cited standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
"'[O]ffensive' acts or language cause a complainant to feel displeasure, anger, resentment, or the like, and such acts or language would be considered indecent or immoral by a reasonable person." Sullivan, supra. This element also requires proof "of sexual conduct or language, either explicit or implicit." Id. at 626. "By implicit sexual conduct or language, we mean that which a reasonable person would construe as having sexual connotations." Ibid.
Here, in the light most favorable to the Commonwealth, the evidence established that the defendant was living with a family, which included the victim, a twelve year old girl. The defendant at the time was a forty-five year old man who was not related to any member of the household. "Whenever" the defendant and the rest of the family were sitting at the table and he was sitting next to the victim, the defendant would be "rubbing [her] foot with his foot and . . . playing with [her] pant leg at the base." In addition to these incidents, the defendant sat with the victim while she watched a movie and touched her leg, which "[f]reaked out" the victim, the defendant stood close to her in the basement and hugged her in a way that made her uncomfortable and resulted in her running out of the house and hiding in a chicken coop, and he wore a bathrobe without anything underneath and she felt "creeped out" when he bent down in the bathrobe and she saw his penis. When the defendant was "interacting" with the victim, "he would breathe differently, like off and kind of heavily and he would shake."
The acquittals on the charges arising out of the latter two incidents, see note 1, supra, do not require us to discount this evidence in our sufficiency analysis.
In this context, the defendant rubbing the victim's foot on a regular basis would be construed by a reasonable person as having a sexual connotation and, therefore, being immoral. Although the victim did not directly testify how the defendant rubbing her feet made her feel, the victim did indicate that the defendant's behavior that upset her, and ultimately resulted in her talking to her mother, started with the defendant rubbing her feet. As a result, a rational juror could infer that the victim felt "displeasure, anger, resentment, or the like" when the defendant frequently rubbed her feet at the table. Sullivan, 469 Mass. at 625.
Disorderly acts are described, in relevant part, as "behaviors that 'create a . . . physically offensive condition for no legitimate purpose of the actor.'" Commonwealth v. Cahill, 446 Mass. 778, 781-782 (2006) (citation omitted). In Cahill, the court determined that the defendant's action of physically grabbing the victim "really tight" from behind at work, and saying "I love you," in the context of his previous and subsequent behavior, id. at 782, such as repeatedly asking her out for dates, approaching her so that his body would "graze" hers, "touching her back[,] [and] often staring down at her station from a balcony," id. at 779 (citation omitted), was an invasion of her personal privacy and physically offensive. Similarly, in this context, where the defendant was living in the victim's house, had taken other opportunities to touch her when the remainder of the family was not in close proximity, and the victim was only twelve, the defendant rubbing the victim's foot on a regular basis at the table was an invasion of her personal privacy and was physically offensive.
The defendant argues that his conduct had a legitimate purpose of being a playful interaction among household members. However, this argument requires that we accept the defendant's version of events, which we cannot do. We must view the evidence in the light most favorable to the Commonwealth.
We therefore conclude that the evidence was sufficient to support the conviction.
Closing argument. The defendant argues that the line in the prosecutor's closing argument that the victim "told you that [the defendant touching her feet under the table] made her uncomfortable and she didn't like it" was a misstatement of evidence, which created a substantial risk of a miscarriage of justice. "Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence. They must also take caution not to misstate the evidence. 'In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the "entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial."'" Commonwealth v. Coren, 437 Mass. 723, 730-731 (2002) (citations omitted).
The defendant did not object to the prosecutor's closing argument at trial. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 187 (2009) (without an objection the standard of review is for a substantial risk of a miscarriage of justice).
Although the victim did not directly testify as was recited in the prosecutor's closing, it was a fair inference from the evidence that the defendant rubbing her foot at the table made the victim uncomfortable. In addition, the judge instructed the jury before the closing arguments that the arguments are not evidence but "an opportunity for each of the lawyers to review his recollection of the evidence with you and to suggest what conclusions you might draw from that evidence," and in the jury charge the judge reiterated that closing arguments are not evidence and that the jury's memory of the evidence controls. This one statement in the prosecutor's closing did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Trainor, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 16, 2015.