MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted after a bench trial of two counts of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B. He timely filed a notice of appeal. During the pendency of his direct appeal this court allowed his motion for leave to file a motion for a new trial in the trial court. The defendant subsequently filed a motion for a new trial and, after a nonevidentiary hearing, the trial judge issued a written decision denying the motion. The defendant appealed and the two appeals were consolidated.
The defendant challenges only the denial of the motion for a new trial. He argues that trial counsel was ineffective in three ways, and that, as a consequence of this ineffectiveness, he is entitled to a new trial. He argues that the trial judge erred in reaching a contrary conclusion. We affirm.
The defendant argues first that trial counsel was ineffective for failing to call the mother of the defendant as a witness. At trial, the victim, who was ten years old at the time of trial, testified that, although ordinarily when her mother was at work both the defendant and the defendants mother were at home, there were two or three occasions around Christmas, when she was nine years old, when the defendant was alone with the victim and her sisters while her mother was at work. The victims mother testified that she remembered only two occasions where the defendant was alone with the victim, both in October 2016. Among other things, the victims mother testified that she shared a car with the defendants mother so that when she left the defendants mother and the defendant with her children and went to work, taking the car, they had no car in which the defendants mother could have left the apartment.
In an affidavit, the defendants mother said that although she did not want to testify, and had told trial counsels investigator this, had she been called she would have testified, and she would have testified that there were only two occasions during the relevant period when she was not present in the apartment with the children when the defendant was there, both in the fall of 2016, likely around October.
The defendant correctly notes that the judge in deciding the motion erroneously overlooked the defendants mothers affidavit. Nonetheless we agree with the judges conclusion that there was no ineffective assistance of counsel in the failure to call the defendants mother. Trial counsels own affidavit recites that he sent an investigator who spoke with the defendants mother who told the investigator that she did not want to be involved and did not want to testify, and that counsel was concerned that she would be a hostile witness. Had the defendants mother provided the testimony described in her own affidavit, she would have corroborated the victims mothers version of events with respect to the question of her presence in the apartment. While that corroboration would have had value, a finder of fact might have concluded that testimony coming from the defendants own mother was of limited value. Even without the defendants mothers testimony, defense counsel did cross-examine the victims mother (who might have been thought sympathetic to the victim or at least less likely to be biased against the defendant) about the defendants mothers likely presence in the apartment.
If the corroboration would have been of some value, on the other side of the scale, in addition to the concern about her being a hostile witness, had the defendants mother been called to testify she could have been questioned using evidence of a “protective order” that prohibited the defendant from being alone with the victim due to past abuse, including physical abuse, of the victim. This would have been proper because not wanting to admit either their disregard of this protective order, or the fact that it was violated, might have given the defendants mother a reason to testify falsely that she was essentially always in the apartment with the defendant when the victim was present. Trial counsels affidavit reflects this exact concern: that calling the defendants mother to testify could elicit facts harmful to the defendants case -- notably, that the defendants mothers presence at the apartment was compelled by “conditions of the protective order.”
In light of the risks inherent in calling the defendants mother to testify, regardless of whether we would have made the same decision, we cannot properly conclude that the decision not to call her fell below what might be expected of an ordinary lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (ineffective assistance of counsel can occur only if “there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer”).
Next, the defendant alleges that failure to introduce Department of Children and Families (DCF) records, outlining the “disgusting” condition of the apartment in which the defendant and the victims mother kept the children, was also ineffective. There was testimony from the victims fathers fiancée that following the date of the alleged indecent assault and battery the victims demeanor and hygiene had deteriorated. The defendant now argues that the DCF records that contained the evidence of the “disgusting” nature of the apartment might have provided a different explanation for that deterioration.
Again, placing this evidence before the finder of fact would have shown just how terribly the defendant treated the victim. Trial counsel recites in his affidavit that he “felt that the more attention [drawn] to the condition of the apartment and of the [victim] prior to the alleged assault, the more it made [the defendant] and his household appear to be terrible care providers for the three children.” That would not have been helpful to the defendant. In addition, the DCF records did not demonstrate any particular change in the apartments condition around the time the victims deterioration began. Again, we cannot properly conclude that the decision not to introduce the records fell below what might be expected of an ordinary fallible lawyer. See Saferian, 366 Mass. at 96.
Finally, the defendant argues that the failure to introduce a sexual assault nurse examiner (SANE) interview, during which the victim described prior occasions where the defendant hit her and locked her out of the apartment, was ineffective assistance of counsel. In the defendants estimation, these prior events might have provided a motive for the victim to lie about the indecent assault and battery.
Again, in his affidavit, trial counsel asserted that he did not want to put before the finder of fact the violence and abuse wrought by the defendant against the victim. He concluded that a better explanation for the allegations was that, as the evidence showed, the victim herself had been accused, the day before making the allegations, of inappropriately touching her male cousin. The defense was that the victim fabricated the allegations against the defendant in order to deflect attention from the allegations against her. Perhaps counsel could have coupled this defense with an argument that the victim also wished to retaliate for the violence and abuse by the defendant against her. But our job is not to second guess defense counsels strategy if it was reasonable. Since introduction of the SANE interview, and use of the evidence of the violence and abuse against the victim by the defendant, would have put that evidence squarely before the finder of fact, we cannot say that the strategy utilized by defense counsel, which kept it out of evidence, fell below what might be expected of an ordinary fallible lawyer. See Saferian, 366 Mass. at 96.
Finally, in light of our assessment of the defendants claims, we do not think that the cumulative effect of the three failures articulated by the defendant in this appeal was to render counsels assistance to the defendant constitutionally ineffective.
The judgments and the order denying the motion for a new trial are affirmed.
So ordered.
affirmed