Com. v. Baran

• Decision Date: 15 May 2009
• Docket Number: No. 07-P-1096.,07-P-1096.
• Citation: 74 Mass. App. Ct. 256,905 N.E.2d 1122
• Parties: COMMONWEALTH v. Bernard F. BARAN, JR.
• Court: Appeals Court of Massachusetts

905 N.E.2d 1122

74 Mass. App. Ct. 256

COMMONWEALTH v. Bernard F. BARAN, JR.

No. 07-P-1096.

Appeals Court of Massachusetts, Berkshire.

Argued February 12, 2008.

Decided May 15, 2009.

David F. Capeless, District Attorney, for the Commonwealth.

Eric Tennen, Boston (John G. Swomley & Harvey Silverglate with him) for the defendant.

Present: LENK, DUFFLY, & GREEN, JJ.

LENK, J.

The defendant was convicted in 1985 of multiple counts of rape of a child and indecent assault and battery on a child under the age of fourteen. His convictions were affirmed on direct appeal in 1986. Before us is the Commonwealth's appeal from the allowance, in 2006, of the defendant's first motion for new trial. We affirm the order of the motion judge.

I. Introduction. In 1984, the then nineteen year old Bernard Baran was working as a teacher's assistant at a preschool day care center in Pittsfield known as the Early Childhood Development Center (ECDC). Over a several week period that October, six children between the ages of two and four (Boy A, Girl B, Boy C, Boy D, Girl E, and Girl F) accused him of molesting them, and he was thereafter charged with six counts each of rape of a child and indecent assault and battery on a child under the age of fourteen. Trial by jury in this notorious case followed within three months; Baran was convicted on January 30, 1985, of three counts of rape of a child and five counts of indecent assault and battery.¹ He was sentenced to concurrent life sentences for each of the rape convictions and to concurrent eight-to ten-year sentences on each of the indecent assault and battery convictions, the latter to be served concurrently with the life sentences.

At trial, the defendant was represented by a lawyer whom his mother hired for him by mistake: the name of the lawyer she retained resembled that of the criminal defense attorney she set out to hire. In all, Baran's mother paid the lawyer through trial less than a thousand dollars; he did not retain an investigator or experts nor advise that this be done. The defendant was represented on appeal by two lawyers in a prominent local firm. One of them was the attorney whom Baran's mother had originally intended to retain as trial counsel. The other, unbeknownst to her, had only recently stopped representing the family of Girl E in connection with a civil suit against ECDC predicated upon Baran's alleged acts. In the direct appeal, counsel argued only preserved errors. Despite a trial record displaying what Baran's present counsel contends were multiple serious shortcomings on the part of trial counsel, appellate counsel neither raised the matter on direct appeal nor sought a new trial asserting the ineffective assistance of counsel. We affirmed the defendant's convictions in a rescript opinion, Commonwealth v. Baran, 21 Mass. App.Ct. 989, 490 N.E.2d 479 (1986). Further appellate review was denied, 397 Mass. 1103, 494 N.E.2d 388 (1986).

Eighteen years later, in 2004, new counsel brought the defendant's first motion for new trial, doing so after four years of persistent discovery efforts that were precipitated at least in part by the intervening destruction of predecessor trial and appellate counsel's files. Motion counsel accordingly attempted to reconstruct the files and information that were or would have been available to the defendant's trial and appellate counsel and, to that end, sought information and documents from the district attorney and participants in related civil cases.² By the time motion counsel became involved in late 2000, other things had changed as well. The trial judge had retired and the trial prosecutor had himself become an associate justice of the Superior Court who frequently sat in Berkshire County, where Baran's trial had been held. Given these circumstances, a Superior Court judge from outside the county was specially designated to handle postconviction discovery and related matters as well as the 2004 motion for new trial.

The postconviction discovery process yielded, among other things, certain documents and materials that trial counsel had never seen as well as information and documents, not part of the trial record, that were known to but not used by trial counsel. By way of example, among the materials not seen by trial counsel were five lengthy unedited videotapes of interviews conducted by the district attorney's office in October and November, 1984, of children A, B, C, D, and F³; the district attorney ultimately turned these videotapes over to motion counsel in September, 2004. Also among the materials unknown to trial counsel were documents generated by police and the Department of Social Services (DSS) concerning contemporaneous accusations made by Boy A and Girl E that they had each been molested by their respective mother's boyfriends; these documents, never produced by the district attorney, were discovered by motion counsel in the civil case files. Among the materials known to but not used by trial counsel, thus not becoming part of the trial record, was a pediatrician's report of her examination of Girl E referencing the prior molestation of Girl E by the mother's boyfriend.

When filed, the motion for new trial, with supporting memoranda, documents, and videotapes, exceeded one thousand pages and rested on four grounds: the trial judge made numerous errors, including the admission of unreliable evidence; there had been multiple instances of prosecutorial misconduct; there was newly discovered evidence; and the defendant had received the ineffective assistance of both trial and appellate counsel. The motion judge also had before him the Commonwealth's written submissions in opposition, ten volumes of trial transcript plus trial exhibits, and the 1985 appellate briefs. In addition, the motion judge heard testimony from six witnesses over five days; he limited that hearing to the issue of ineffective assistance of counsel. Three of the witnesses were attorneys who had been associated with the law firm that served as Baran's appellate counsel and testified as to that firm's representation of Girl E and her mother in a contemplated civil suit against ECDC just prior to taking on Baran's appeal. The defendant testified, as did his mother, and the motion judge heard extensive testimony from child psychologist Dr. Maggie Bruck, a recognized authority in the areas of suggestibility memory, and child interviews. The motion judge denied motion counsel's request to call the trial prosecutor as a witness, and defendant's trial counsel was not called by either party, due to his reported state of poor health.

Although four grounds were offered for the motion for new trial and many of the asserted errors readily fall into more than one legal category, the motion judge ordered a new trial solely on the basis of the ineffective assistance rendered by trial and appellate counsel. The motion judge's findings portray a defense attorney who, simply put, was in way over his head. Setting out his findings and rationale in a comprehensive decision entered on June 16, 2006, the motion judge concluded that trial counsel's representation of Baran was gravely deficient in numerous respects both before and during trial and that these fundamental failings likely deprived Baran of an available substantial defense. While some of these deficiencies were apparent from the trial record, yet not raised on direct appeal, the magnitude and metastatic effects of the central deficiency—trial counsel's grievous failure to have investigated and prepared his case—were not apparent from the trial record. Whether considered separately or cumulatively, whether viewed as the ineffective assistance of counsel or as errors creating the substantial risk of a miscarriage of justice, the motion judge determined that "the cumulative weight of these errors" created an overriding uncertainty whether the defendant had received a fair trial; a new trial was accordingly necessary. The defendant was thereafter admitted to bail, having served twenty-two years of his sentence.

On appeal, the Commonwealth contends that the motion judge abused his discretion in ordering a new trial under Mass. R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), maintaining that counsel had not rendered ineffective assistance and that justice had not miscarried. In assessing the Commonwealth's contentions, we are mindful that the motion judge was not the trial judge and that he based his decision in no small part on the documentary trial and appellate record. We are also mindful that, in addition to reviewing the motion exhibits, he heard testimony from six witnesses and that this, too, was interwoven into his decision. Accordingly, we have reviewed the entire record, including the videotaped interviews of the child complainants, and while deferring to the motion judge's assessment of the credibility of the witnesses he heard, regard ourselves as being in as good a position as the motion judge to assess the remainder of the record. Commonwealth v. Lykus, 451 Mass. 310, 325, 885 N.E.2d 769 (2008). Having said this, we are satisfied that the motion judge's findings of fact are firmly anchored in the evidence of record and rely on them as appropriate in what follows.

II. Background. The family of Boy A was the first to accuse the defendant of molestation. In mid-September, 1984, either the boy's mother or her then-boyfriend, David, lodged a complaint with ECDC objecting to Baran, a homosexual man, being allowed to care for young children.⁴ Mother A had complained about this to her social worker in early August of that year.⁵ On October 5, 1984, Boy A's family reported Baran to the police for having touched Boy A's penis, and the next day took the boy for a medical examination; a throat culture tested positive for gonorrhea. The mother of Girl E, a friend of Boy A's mother, was present at the A family's home when Mother A received the call reporting the results of the gonorrhea...