MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of three counts of rape, G. L. c. 265, § 22 (b), stemming from an incident that occurred in a bathroom during a house party attended by University of Massachusetts (UMass) undergraduates. The defendant admitted that the sexual encounter occurred but asserted that it was consensual. In essence, the defendant -- who by his own admission was extremely intoxicated during the encounter -- claimed that he had understood the victim to have given “physical consent” to intercourse by standing in front of him after he had urinated. By contrast, the victim testified that when the defendant urinated, she turned her back to give him privacy and he attacked her without warning, anally and vaginally raping her with his penis even though she repeatedly said “no.” The jurys verdict reflects their conclusion that the encounter was nonconsensual. The judge imposed concurrent sentences of five years to five years and one day of incarceration, followed by three years of probation.
The defendants direct appeal of his convictions was then stayed to permit him to file a motion for new trial, which he based on a claim of ineffective assistance of counsel. The motion argued that trial counsel had been ineffective by (1) failing “to read and identify exculpatory statements contained in the discovery provided by the Commonwealth” and (2) failing to use those statements at trial. More specifically, the defendant claimed trial counsel failed to read and use an investigative report prepared by UMasss assistant dean of students for student conduct, summarizing an interview of Josh Odam, who was the boyfriend of first complaint witness Maija Hall, and a witness at trial. The motion was supported by an affidavit from trial counsel stating that he had not read the report and that, had he been aware of it, he would have used the investigative report to contradict the victims testimony that the defendant attacked her in the bathroom and that she was sober at the time. The motion was also supported by an affidavit from the defendant stating that he was not shown the investigative report prior to trial, nor had he known it existed.
The judge (who had also been the trial judge) conducted an evidentiary hearing at which trial counsel testified. The judge credited counsels testimony at the hearing as to the following facts. After he had signed the affidavit in support of the motion for new trial, trial counsel located a copy of the UMass investigative report in his trial preparation file as well as a copy of a police report containing another statement by Odam (collectively, the investigative reports). Although trial counsel did not have a specific recollection of reading either document before trial, he believed he must have done so because they were in his trial notebook in a section relating to Odam. Even though the statements in the investigative reports constituted hearsay, counsel believed they would have been useful at trial to impeach Odam, Hall, and the victim.
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The findings recited in this paragraph were all rooted directly and accurately in trial counsels testimony at the evidentiary hearing.
The judge allowed the defendants motion for new trial in a detailed memorandum of decision. The judge concluded that trial counsels performance fell below what was required because he failed to review the investigative reports and, accordingly, failed to investigate a potential line of defense. The judge then considered whether the supposed failure to read the reports deprived the defendant of a substantial ground of defense, as required under Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Although the judge acknowledged that Odams out-of-court statements may not have been admissible at trial as direct evidence of the victims intoxication, he concluded that they could have been used to impeach the credibility of the victim and Hall by showing inconsistencies in their testimony about whether the victim had been drinking before the assault. The judge concluded that
“[w]hile failing to impeach a witness is rarely grounds for a new trial itself, in this case the witnesses’ credibility was so central to the Commonwealths case that trial counsels failure to even familiarize himself with statements that could have undermined that credibility deprived [the defendant] of a substantial ground of defen[se] and, ultimately, denied him a fair trial.”
It is this ruling that is before us now.
“In the absence of constitutional error, a motion for a new trial is addressed to the sound discretion of the trial judge, who may grant a new trial if it appears that justice may not have been done” (quotations and citations omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015).
“Judges are to apply the rule 30(b) standard rigorously and should grant such motion only if the defendant comes forward with a credible reason that outweighs the risk of prejudice to the Commonwealth. On the Commonwealths appeal of the grant of a defendants motion for a new trial, we consider whether the judge committed a significant error of law or abuse of discretion in allowing the defendants motion. That discretion, however, is not boundless and absolute. Under the abuse of discretion standard, the issue is whether the judges decision resulted from a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives[.]
“․ Where, as here, the motion judge is also the trial judge, we give special deference to the judges findings of fact and the ultimate decision on the motion. We consider the record in its entirety, however, to determine whether there exists in the record before us evidence to support the judges decision to order a new trial” (quotations and citations omitted).
Id. at 672-673.
“Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). A defendant is denied constitutionally effective assistance of counsel if he demonstrates that the representation fell “measurably below that which might be expected from an ordinary fallible lawyer,” and that the performance inadequacy “likely deprived the defendant of an otherwise available, substantial ground of defence.” Saferian, 366 Mass. at 96.
“We have applied a stringent standard of review to claims of ineffective assistance because of failure to impeach a witness.” Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). In general, the mere failure to impeach a witness does not constitute ineffective assistance of counsel. Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Unless counsel failed “to pursue some obviously powerful form of impeachment ․ it is speculative to conclude that a different approach ․ would likely have affected the jurys conclusion.” Commonwealth v. Knight, 437 Mass. 487, 502 (2002), quoting Fisher, supra.
Here, the defendant does not argue that counsels failure deprived him of an otherwise available substantial ground of defense; instead, he argues that using Odams out-of-court statements to impeach the Commonwealths witnesses would have strengthened the defense he did present: namely, that the victim consented to the sexual encounter but later regretted it. The defendant argues that Odams statements -- even if not admissible
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-- should have been used to cross-examine Hall, Odam, and the victim. Specifically, the defendant argues that Odams statements to UMass investigators suggest that Hall told Odam that the victim had been drinking before the assault. In addition, the defendant argues that Odams out-of-court statement that the victim and the defendant “were having sex and when [the victim] asked [the defendant] to stop he did not” suggests that the sexual encounter began consensually.
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Even assuming that Odams out-of-court statements can be read in the manner the defendant argues, the defendant has not pointed to any aspect of the witnesses’ testimony on direct examination (or, for that matter, their testimony on cross-examination) that was inconsistent with the passages to which he points in Odams out-of-court statements. Neither Hall nor Odam testified on direct examination as to what Hall told Odam; nor did they testify as to whether the victim had been drinking before the sexual encounter. Indeed, neither Hall nor Odam were at the party before the incident occurred, and, therefore, neither of them had firsthand knowledge of whether the victim had been drinking before they arrived. Accordingly, neither of them could have offered testimony on that point. Thus, it does not appear that Odams out-of-court statements could have been used effectively to impeach Hall, Odam, or the victim on cross-examination.
That said, Odams out-of-court statements arguably could have been used by defense counsel to prepare his cross-examinations of the victim and Hall with respect to what the victim told Hall during the first complaint. At trial, Hall testified that the victim told her that the defendant had exposed himself to her, “forced her to have sex,” and that “she kept saying no.” Although this testimony was not directly inconsistent with Odams out-of-court statements, defense counsel arguably could have used the statements to prepare a line of cross-examination designed to elicit testimony that what the victim actually told Hall was that the victim and the defendant “were having sex and when [the victim] asked [the defendant] to stop he did not,” thus allowing the defendant to argue that the sexual encounter began consensually. Odams out-of-court statements also gave defense counsel a good faith basis to ask Hall whether the victim told her that she had been drinking before the sexual encounter. Thus, Odams statements might have been used to cross-examine Hall about what the victim said during the first complaint, and, in this way, to undermine the victims testimony and credibility. Whether these possible lines of inquiry would have elicited the testimony the defendant now argues they would have borders on speculation.
The failure to impeach a witness does not constitute ineffective assistance of counsel unless the decision was “manifestly unreasonable.” See Kolenovic, 471 Mass. at 674.
“Reasonableness in the context of an ineffective assistance of counsel claim is an objective standard that measures counsels conduct against that which lawyers of ordinary training and skill in the criminal law would consider competent. Although our cases applying the manifestly unreasonable test have not precisely marked the limits of a trial attorneys prerogative to make strategic decisions, we have been clear that reasonableness does not demand perfection. Nor is reasonableness informed by what hindsight may reveal as a superior or better strategy. Counsel may strive for perfection, but only competence or the avoidance of a serious incompetency is required. The manifestly unreasonable test, therefore, is essentially a search for rationality in counsels strategic decisions, taking into account all the circumstances known or that should have been known to counsel in the exercise of his duty to provide effective representation to the client and not whether counsel could have made alternative choices” (quotations and citations omitted).
Id. at 674-675.
Although the judge recognized these general principles, he concluded that the victims credibility was so central to this case
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that counsels failure to read the investigative reports required a new trial. But the judges reasoning in this regard does not square with his own subsidiary finding that trial counsel must have reviewed the reports because he located them in his trial preparation folder under “Odam.”
As noted above, the judge credited trial counsels testimony on this point. The judge also credited counsels testimony that his affidavit (which stated that he did not read Odams statements) was prepared before he discovered the documents in his trial preparation file. Despite crediting trial counsels testimony at the evidentiary hearing, the judge then analyzed the new trial motion as though the motion rested solely on counsels affidavit. Certainly, the judge was not required to credit trial counsels testimony at the evidentiary hearing. But having done so, the judges analysis then needed to take that testimony into account and be consistent with it. Given the judges subsidiary findings, the motion could not be decided on the basis that counsel failed to read or review the investigative reports; instead, the motion should have been analyzed on the basis that counsel failed to discuss the reports with the defendant and failed to use them at trial.
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In addition, the judge did not consider whether counsels failure to use Odams out-of-court statements was manifestly unreasonable given that the statements were potentially double-edged swords. Although portions of the investigative reports could be read to indicate that the victim began drinking before the sexual encounter and that the encounter began consensually, other portions supported the conclusion that the victim had been raped by the defendant. The judge should have considered whether it was objectively reasonable to forego cross-examination on isolated statements in the investigative reports when the consequence might have been to (a) allow Odam to offer an interpretation of the statements that was unfavorable to the defendant, or (b) open the door to the inculpatory portions of the reports.
Finally, the judge does not seem to have considered how, and to what degree, Odams out-of-court statements would have helped the defense at trial. See Commonwealth v. Johnson, 435 Mass. 113, 123 (2001), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (ineffective assistance claim requires showing that “better work might have accomplished something material for the defense”). For example, when the defendant gave a recorded interview to UMass investigators (which was played as at trial) he did not claim that the victim was intoxicated or that she had been drinking. Nor were Odams statements otherwise entirely consistent with the defendants version of events, which, as noted at the outset of this decision, was that the defendant believed the victim gave nonverbal consent to the entire sexual encounter merely by standing in front of him after he finished urinating. Moreover, Odams statements ultimately support that a rape occurred because they indicate that at some point, the victim said “no” repeatedly and the defendant did not stop. Although the judge characterized the Commonwealths case as not being “overwhelming” because it rested primarily on the testimony of the victim, the judge does not appear to have considered the strength of the defense, or whether using Odams statements at trial could have overcome its weaknesses, including the inconsistencies and gaps in the defendants statement to UMass investigators, and that the testimony of his trial witnesses -- as the defendant himself characterized it -- “alone and in concert, lacked credibility and was largely ineffective.”
In light of what we have set out above, the order allowing the motion for new trial cannot stand. Recognizing that the judge was the trial judge and thus has a firsthand impression of the trial which we do not have, we vacate the order and remand it for reconsideration, taking into account what we have said in this decision.
So ordered.
vacated and remanded
FOOTNOTES
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. During the evidentiary hearing, trial counsel testified that he should have discussed with the defendant the pros and cons of cross-examining Odam regarding the statements to investigators, and then made a decision whether or not to use them at trial. This, he did not do.
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. The investigative reports contain multilevel hearsay -- that is, they contain Odams out-of-court statements recounting statements that were made to him by a third party. The reports and the out-of-court statements contained in them, are, accordingly, not admissible in any direct manner, if at all -- a point the defendant acknowledged at oral argument.
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. The defendant argues that the police report suggests the same. The report indicates that Odam told police, “I remember [Hall] telling me she was worried about [the victim] she had been drinking and [the defendant] had been drinking as well. I remember [Hall] saying that [the victim] kept saying ‘No’ and [the defendant] didnt stop.”
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. We note that it is neither unusual nor a failing for a sexual assault case to rest on the credibility of the victim. Indeed, a sexual assault conviction may rest solely on the testimony of the victim. See Commonwealth v. Santos, 100 Mass. App. Ct. 1, 3 (2021) (sexual assault victims testimony alone is sufficient to support conviction).
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. Although trial counsel did not dispute that he failed to discuss the investigative reports with the defendant before trial, the defendant has not shown or argued that “better work [in that regard] might have accomplished something material for the defense.” Commonwealth v. Johnson, 435 Mass. 113, 123 (2001), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Therefore, the remainder of the analysis will focus only on counsels failure to use the statements at trial.