Opinion
No. 09–P–2323.
2013-01-11
COMMONWEALTH v. WEBSTER W., a juvenile.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile was indicted on two counts of forcible rape of a child and one count of indecent assault and battery on a child. The Commonwealth dismissed the charge of indecent assault and battery on a child and counsel then negotiated a plea agreement on the juvenile's behalf; the agreement however was rejected by a judge of the Juvenile Court after the juvenile failed to state his agreement with the facts recited by the prosecutor.
A bench trial ensued at which the juvenile was convicted of one count of forcible rape of a child. The other count, alleging forcible rape against the same victim but on a different date, was dismissed by the judge at the conclusion of the Commonwealth's presentation of its case. The juvenile asserts ineffective assistance of counsel and appeals from the denial of his motion for a new trial. We affirm.
The juvenile has also brought a direct appeal, but raised no additional issues in connection with that appeal; therefore we
The juvenile's case founders on both prongs of the Saferian test, Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), for the reasons set forth succinctly in the order of the motion judge, who was also the trial judge. Counsel negotiated an advantageous plea agreement for the juvenile which he then himself scuttled. The strategic decision not to assert a claim of consensual sexual intimacy involving both vaginal and anal penetration of a thirteen year old victim was manifestly reasonable and easily attained a level of effectiveness that “might be expected from an ordinary fallible lawyer.” Ibid. It was likewise an easily defensible strategic decision to refrain from having the juvenile testify in his own defense and predictably expose him to cross-examination about numerous other confessed sexual assaults of the same victim. Trial counsel also explained in his affidavit that he concluded the juvenile would be a poor witness based on a clinical evaluation he had obtained to evaluate the juvenile's competency.
We pause briefly to address one omission on the part of the juvenile's trial counsel that the Commonwealth concedes cannot be justified as strategic: he failed to watch a videorecorded sexual abuse intervention network interview with the victim. While it would have been demonstrably better practice for trial counsel to have watched the video, we agree with the Commonwealth that his failure to do so did not prejudice the juvenile for the reasons stated in the Commonwealth's brief, namely that the interview provided neither exculpatory statements nor any basis for cross-examination of the victim. Finally, we reiterate that trial counsel was able to have one count dismissed at the conclusion of the Commonwealth's case. The juvenile was not deprived “of an otherwise available substantial ground of defense.” Ibid. Better work by counsel would not “have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Judgment affirmed.
Order denying motion for new trial affirmed.
review for abuse of discretion or significant error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).