Commonwealth v. Civitarese

By the Court (Cohen, Hanlon & Sullivan, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

After a jury trial, the defendant was convicted of four counts each of rape of a child by force and indecent assault and battery on a child under fourteen. He also was convicted of assault with intent to rape a child, indecent assault and battery on a person fourteen years old or older, and open and gross lewdness. He appeals, arguing several errors, including (1) improper and prejudicial joinder of unrelated charges, and (2) insufficient evidence to prove forcible rape. He also argues that trial counsel was ineffective, which led, in his view, to an involuntary waiver of his right to testify at trial. In addition, he argues that trial counsel was ineffective for including in his opening an allegation about a possible third-party culprit but not presenting that evidence to the jury. The defendant's motion for a new trial based on these ineffective assistance claims was denied by the trial judge. We consolidated the defendant's appeal from that denial with his direct appeal, and we now affirm.

Background. The jury heard evidence that the defendant sexually assaulted and raped two young girls, K and S, while he was the live-in boyfriend of K's mother and served as K's and her siblings' primary caretaker when K's mother was working. S, who had a "brother/sister relationship" with K and her siblings, spent many weekends at K's family's home, and would often "sleep over." The defendant's abuse of K started when she was six or seven and ended when she was approximately thirteen. It usually occurred when her mother was at work and her brothers were playing outside or playing video games in their room. S was approximately twelve or thirteen when the defendant assaulted her. Both victims were sexually assaulted in the family home, in either K's bedroom or the bedroom the defendant shared with K's mother. Essentially, the assaults included touching and fondling of genitals, with K forced to perform oral sex on the defendant; digital penetration of both girls; and penile penetration of S. The defendant told K to keep what they were doing a secret, and said that if she told she "would get taken away again" from her mother. The defendant told S, during the rapes, that he loved her, and not to tell K's mother because she "would get mad." K's abuse stopped when the defendant moved out of the family home after a break-up with K's mother; S's abuse stopped after the defendant raped her and she stopped sleeping at the family's home.

Joinder. The defendant argues that the judge abused his discretion when he joined for trial the indictments charging sexual offenses against two separate victims. He contends that the offenses were not related within the meaning of Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979), and that joinder was so prejudicial that it prevented him from obtaining a fair trial.

It is well settled that "[j]oinder is a matter committed to the sound discretion of the trial judge, Commonwealth v. Sullivan, 436 Mass. 799, 803 (2002), and 'will not be reversed unless there has been "a clear abuse of discretion."'" Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 198-199 (2010), quoting from Commonwealth v. Pillai, 445 Mass. 175, 180 (2005). "If a defendant is charged with two or more related offenses, . . . [t]he trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice." Mass.R.Crim.P. 9(a)(3).

"Two or more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Mass.R.Crim.P. 9(a)(1). "Factors that may be considered in determining whether offenses are related for purposes of joinder include factual similarities, and closeness of time and space." Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005) (citations omitted). However, "[t]here is no requirement that the circumstances of the cases be identical." Id. at 261. See Aguiar, supra at 200.

The inquiry is two-pronged in deciding whether joinder is proper -- "first, a determination whether the offenses are related and, second, a determination whether joinder will be unfairly prejudicial." Id. at 199. "[T]o prevail on a claim of misjoinder, the defendant 'bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.'" Pillai, supra at 179 (citation omitted).

In this case, it was reasonable for the judge to conclude that the separate offenses against the two victims shared "factual similarities and closeness of time and location." Aguiar, supra. The assaults occurred in the same location and during the same time period. In each case, the defendant sexually assaulted a young girl, while cautioning her to keep it secret and predicting negative consequences from disclosure. In addition, the evidence in the two cases shows a common scheme and pattern of operation that tends to prove each of the charges and, therefore, makes each relevant to proof of the other. The defendant failed to meet his burden of showing that the judge abused his discretion in joining the indictments for trial. See Pillai, supra at 179-180.

Sufficiency of evidence. The defendant also argues that there was insufficient evidence to support his convictions of forcible rape of S. S testified that the defendant came into K's bedroom where she and K were sleeping, around 7:00 A.M., after K's mother had left for work. He woke S up and told her to come into his bedroom; she told him "No," but he stood waiting until she obeyed, so she followed him through the apartment to the bedroom he shared with K's mother. After the two were in bed underneath the covers, the defendant began kissing S on the mouth; she "[p]ulled back . . . [bec]ause it was disgusting," but the defendant continued kissing her. S also told the defendant "No" after he began touching her chest and vagina over her pajamas; he continued nonetheless. S also told the defendant to stop when he pulled down her pajama bottoms and put his finger into her vagina, but he continued. The defendant then put his naked body on top of S's body and inserted his penis into her vagina despite her pleas to stop. She tried to pull away in an attempt to stop the defendant, but was unable to do so. Viewing the evidence in the light most favorable to the Commonwealth, it clearly was sufficient to support the defendant's conviction of forcible rape of a child. See Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 314 (2008). See also Commonwealth v. King, 445 Mass. 217, 224 (2005), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

Motion for a new trial -- ineffective assistance of counsel. After an evidentiary hearing at which both the defendant and his trial counsel testified, the motion judge, who also was the trial judge, made thoughtful and thorough findings of fact when he denied the defendant's motion for a new trial. We affirm, essentially for the reasons that he explained very well.

a. Opening statement. During defense counsel's opening statement he told the jury, over objection, that both K's mother and K's mother's sister had been "victim[s]" of their brother, K's uncle. As the judge found, trial counsel "did not dwell on it, and he intentionally refrained from promising specific testimony from a particular witness, lest the evidence be excluded." At trial, both K and her mother testified that K had never been alone with the uncle, and, as a result, the judge ruled that the defendant could not question the mother about what had happened when she and the uncle were both children.

In his findings and rulings on the defendant's motion for a new trial, the judge noted that defense counsel "touch[ed] on the issue only briefly in opening, and without promising specific testimony from an identified witness." The judge concluded that he could "not say [trial counsel's] judgment on the matter fell below the standard of the average fallible attorney, or that the mention of the issue in opening likely damaged his chances on the other, more viable theories of defense."

"[T]rial counsel's failure to produce evidence to which counsel alludes in an opening statement [does not] constitute[], in and of itself, ineffective assistance of counsel in all cases." Commonwealth v. Duran, 435 Mass. 97, 109 (2001). To succeed, the defendant must show "that defense counsel's failure to produce important evidence promised in opening statements was 'behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer,' and deprived the defendant 'of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)." Duran, supra at 110 n.14. Our analysis focuses upon factors including the nature and extent of the promise, any strategic justifications, and the impact on the jury when the promised evidence was not produced. Id. at 110. "There is, in any opening statement, a risk that promised evidence will not materialize. The decision whether to make an opening statement, and, if so, what details to include in that statement, are purely strategic, and the strategic benefit of announcing specific anticipated testimony in the opening statement may outweigh the risk that the testimony will not be available. 'Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Commonwealth v. McMahon, 443 Mass. 409, 425 (2005), quoting from Strickland v. Washington, 466 U.S. 668, 690 (1984).

Here, we cannot say the defendant has shown that the judge abused his discretion or that counsel's actions were both substandard and prejudicial. Compare Commonwealth v. Jenkins, 458 Mass. 791, 810 n.16 (2011) ("The defendant asserts that he was prejudiced by his counsel's promise that he would present evidence of a third-party culprit in his opening statement. That evidence promised in an opening statement does not materialize does not necessarily amount to ineffective assistance. . . . In any event, trial counsel did not state that the evidence would be forthcoming, but carefully presented the theory as a possibility"). We observe that the prosecutor did not mention in his closing argument the lack of evidence relating to the uncle or "otherwise attempt to profit from defense counsel's opening promise." Duran, supra at 111. Finally, as the judge found, "although the defendant was not able to pursue his third-party culprit theory, the . . . other principal lines of defense -- limited access, belated disclosure, and the inference that no sexual abuse had occurred -- were left fully intact, and were presented thoroughly and capably."

b. Decision not to testify. The defendant also claims that counsel was ineffective in advising him not to testify. To succeed on such a claim, the defendant must "prove, by a preponderance of the evidence, that, but for his counsel's erroneous advice . . . he would have testified in his own defense." Commonwealth v. Lucien, 440 Mass. 658, 671 (2004), quoting from Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 642 (1990).

Here, the judge credited trial counsel's testimony at the new trial hearing that he had been concerned that the defendant would make a problematic witness; during many interactions with the defendant prior to trial, counsel had observed that the defendant appeared nervous and distractible, tending to ramble and to stray from questions posed. In addition, K's mother and S's mother had first met when visiting a correctional facility where the defendant was incarcerated, and the defendant had been unavailable for some part of the time period when the offenses occurred because he was undergoing drug rehabilitation. Despite the fact that in response to a pretrial motion in limine the judge had excluded evidence of both of those circumstances, counsel, as the judge found, "had a genuine and reasonable concern about his client's ability to make a good impression, stay on point, and avoid dangerous shoal waters had he testified at trial." Accepting counsel's advice, the defendant informed the judge at trial of his decision not to testify; the judge then explained to the defendant that it was his choice, and that he had "an absolute right either to testify or not to testify." The defendant reiterated that it was his choice not to testify.

We find no error in the judge's conclusion that "the defendant has not shown that his waiver of his right to testify was unknowing or involuntary, or that the advice he received from his counsel on the subject fell below the standard of the average fallible attorney."

Judgments affirmed.

Order denying motion for new trial affirmed.

By the Court (Cohen, Hanlon & Sullivan, JJ.),

Clerk Entered: September 1, 2015.