Opinion
15-P-1284
08-08-2016
COMMONWEALTH v. DAVID A. HENRICHON.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a Superior Court jury of aggravated rape of a child and two counts of indecent assault and battery on a child under the age of fourteen. He asks us either to set aside the verdicts as against the weight of the evidence, or to grant him a new trial due to the ineffective assistance of trial counsel. We affirm.
Background. Based upon the evidence at trial, the jury could have found that the victim, born on October 25, 1997, is the defendant's granddaughter. At the time of trial she was seventeen years old. The victim testified that, when she was "probably around nine years old," she was alone with the defendant in his bedroom and she told him that she was having trouble going to the bathroom. The defendant touched her vagina. Later, when the victim was "[p]robably around eleven," the defendant came to her mother's house to fix a light switch. The two were alone in the house, and the defendant came into the victim's bedroom, laid down next to her on the bed, and "stuck his fingers in [her] vagina." On another occasion when the defendant and the victim were alone in the defendant's kitchen, the victim told him that her breasts were beginning to develop and the defendant replied that he wanted to see them. The victim lifted her shirt and the defendant fondled her breasts.
Although both parties refer to a third volume of trial transcript, only two are included in the record before us.
In an interview with Rutland police Detective Chris Giglio, the defendant admitted that one time he was wrestling with the victim when his hand accidentally touched her vagina. He was indicted for aggravated rape of a child and for two counts of indecent assault and battery on a person under the age of fourteen. Before trial, the defendant filed a motion for a bill of particulars that appears never to have been acted on.
At the end of defense counsel's cross-examination of the victim, he asked her, "Is it fair to say that you have told us about all of the incidents that occurred during that period of time that we've been talking about?" The victim responded that she had "told [him] the ones that [she] could remember with the most detail." Defense counsel then sought to exclude the defendant's statement to Detective Giglio. After hearing from both parties, the judge allowed the Commonwealth to present the statement. The defendant's motions pursuant to Mass.R.Crim.P. 25(b), as amended, 420 Mass. 1502 (1995), for required findings of not guilty, made at the conclusion of the Commonwealth's case, at the close of evidence, and again after the verdicts were returned, were denied.
Discussion. The defendant's first argument is that, although the evidence was legally sufficient to support the verdicts, we should set them aside as against the weight of the evidence. He relies on rule 25(b)(2), which "gives trial judges a power to enter a finding of a lesser degree of guilt in the same manner that" the Supreme Judicial Court has such power under G. L. c. 278, § 33E. Commonwealth v. Gaulden, 383 Mass. 543, 553 (1981). The defendant did not seek this relief in the trial court and he does not challenge the denial of his rule 25(b) motions, which were solely based on the sufficiency of the evidence. He cites to no authority for the proposition that we may grant the relief he requests, and we consider the trial court to be the proper forum for his claim. See Commonwealth v. Woodward, 427 Mass. 659, 666 (1998) (comparing "[t]he authority of the trial judge under rule 25[b][2]" to that of Supreme Judicial Court under G. L. c. 278, § 33E [emphasis supplied]); Commonwealth v. Almeida, 452 Mass. 601, 613 (2008) (rule 25[b][2] "authorizes a trial judge to reduce a verdict despite the presence of sufficient evidence to support the jury verdict" [emphasis supplied]). Even if Taylor v. Beaudry, 82 Mass. App. Ct. 105 (2012), was applicable (it is not), we see nothing in the judgments "that so unfairly punishes [the defendant] as to cause justice to miscarry." Id. at 114 (Brown, J., dissenting).
The defendant next argues that he was denied the effective assistance of counsel when trial counsel (1) failed to obtain a bill of particulars, and (2) asked the victim whether she had testified to all incidents of abuse. Again, the relief he seeks should be the subject of a trial court motion. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). In any event, we do not see how a bill of particulars would have helped the victim remember the specific dates of the events. The victim testified on cross-examination that it was "hard for [her] to pinpoint the age" when the incidents about which she testified occurred. She referred to her age at the times of the events in a general way and explained that she could remember the events but not the dates. The defendant offers no evidence such as flight or hotel records to support his claim that he may have been out of town when the victim alleges that the abuse occurred, and he has not satisfied his burden of showing that any failure by counsel deprived him of an "otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
There was a delay between the events that are the subject of the charges and her disclosure to her mother.
Nor was counsel ineffective by asking the victim whether she had testified to all incidents of abuse, because the decision to ask that question was not "'manifestly unreasonable' when made." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (citation omitted). Counsel could have made a strategic decision to ask the question based on a theory that an affirmative answer would give him a stronger argument for excluding the defendant's statement to Detective Giglio. The fact that the judge allowed the statement in evidence does not make a decision to ask the question manifestly unreasonable, and once again the defendant has failed to demonstrate that trial counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," depriving him of "an otherwise available, substantial ground of defence." Saferian, supra.
We do not know whether counsel's decision to ask the question was a strategic one, as the defendant has not moved for a new trial.
Judgments affirmed.
By the Court (Carhart, Maldonado & Henry, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: August 8, 2016.