Com. v. Durakowski

• Decision Date: 13 May 2003
• Docket Number: No. 01-P-444.,01-P-444.
• Citation: 58 Mass. App. Ct. 92,788 N.E.2d 568
• Parties: COMMONWEALTH v. John DURAKOWSKI.
• Court: Appeals Court of Massachusetts

788 N.E.2d 568

58 Mass. App. Ct. 92

COMMONWEALTH v. John DURAKOWSKI.

No. 01-P-444.

Appeals Court of Massachusetts, Bristol.

Argued January 15, 2003.

Decided May 13, 2003.

Further Appellate Review Denied June 26, 2003.

Sharon Fray-Witzer, Boston, for the defendant.

Kevin Connelly, Assistant District Attorney, for the Commonwealth.

Present: PORADA, SMITH, & MASON, JJ.

PORADA, J.

From his convictions of assault with intent to commit rape, second or subsequent offense, assault and battery, and being a habitual criminal, the defendant appeals, claiming that his trial counsel was ineffective and that the evidence was insufficient to support a finding of guilt as to the second or subsequent offense portion of the indictments charging the defendant with assault with intent to commit rape.¹ We affirm.

1. Ineffective assistance claim. The defendant argues that his trial counsel was ineffective in conceding the defendant's guilt as to assault and battery in his opening statement and closing argument; in failing to attack effectively the Commonwealth's evidence identifying the defendant as the perpetrator of the crime; in failing to present or object to certain evidence; and in failing to object to the judge's instruction on intoxication. In order to establish his claim of ineffective assistance, the defendant must show that there has been serious incompetency, inefficiency or inattention of counsel — behavior falling measurably below that which might be expected from an ordinary fallible lawyer — and that those shortcomings deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). The defendant has not done so in this case.

The defendant first contends that his counsel was ineffective because in his opening statement he conceded that the defendant was guilty of "something," and in his closing argument he conceded the defendant was guilty of assault and battery. The defendant argues that those concessions deprived him of a defense and nullified his presumption of innocence. However, a defendant is not necessarily deprived of a defense when some guilt is conceded. As a tactical decision, counsel may well concede guilt on a less serious offense in an effort to persuade the jury to mitigate punishment by acquitting on the more serious offense. See Commonwealth v. Stoute, 10 Mass.App.Ct. 932, 933, 413 N.E.2d 739 (1980) (concession by defense counsel of guilt on assault charge, in effort to persuade jury to acquit on kidnaping charge, did not amount to ineffective assistance of counsel). Here, it is apparent from the record that the defense strategy was designed to persuade the jury that the defendant was too intoxicated to form the necessary intent to commit mayhem or an assault with intent to rape. Given the strength of the Commonwealth's case — the victim's identification of the defendant as the assailant, the defendant's proximity to the scene of the crime and the blood on his lip and mouth which suggested it came from the bloody bite to the victim's nose inflicted by the perpetrator — it was not unreasonable for defense counsel to adopt a strategy that would concede guilt on a lesser charge in order to avoid guilt on the more serious charges. In fact, defense counsel's strategy was not without success, for the jury acquitted the defendant of the crime of mayhem and found him guilty on the lesser charge of assault and battery on the indictment charging him with assault and battery by means of a dangerous weapon. As such, defense counsel's strategy was not manifestly unreasonable and cannot serve as the basis for a finding of ineffective assistance of counsel. See Commonwealth v. Adams, 374 Mass. 722, 728-729, 375 N.E.2d 681 (1978) (tactical judgments that are not manifestly unreasonable do not lead to finding of ineffective assistance of counsel).

The defendant next argues that defense counsel did not make use of all the evidence that could have been used to attack the victim's identification and that any attempt counsel made to attack the identification was at odds with his concession of identification and nullified the defendant's defense relating to his claim that he was too intoxicated to possess the necessary intent. Here again, our review of the record indicates that defense counsel's strategy was to focus on the defendant's inability to form the specific intent to commit the more serious crimes and to forgo an attack on identification. For the reasons noted, this was not a manifestly unreasonable strategy. Further, we view the thrust of defense counsel's questions and statements in closing argument relating to the identification of the defendant by the victim as an attack on the witness's credibility and as not inconsistent with defense counsel's strategy to focus on the issue of intent.

The defendant argues that defense counsel was ineffective in failing to introduce in evidence a police booking sheet that would have shown that the defendant was initially booked for assault and battery and not for assault with intent to rape. The trial judge had advised defense counsel that she would not let an officer testify as to what crime had been committed. The defendant argues that his trial counsel mistakenly understood this ruling to preclude his introducing in evidence the booking sheet that, the defendant claims, would demonstrate that the victim did not initially complain that the defendant tried to rape her. While the defendant is correct that the judge's ruling about the booking sheet appears to have been limited to excluding the booking officer's opinion on what charge to file against the defendant, defense counsel's failure to lay a foundation for purposes of impeaching the victim did not deprive the defendant of a substantial defense. The hospital report was in evidence, and showed that the victim reported to hospital personnel that she had been "accosted" by "a homeless person." In addition, two witnesses, the owner of the bar in which the victim sought aid and the police officer who was dispatched to investigate the incident, both testified that she told them that a man had tried to rape her. In those circumstances, it is unlikely that the introduction of the booking sheet for purposes of impeaching the victim would have accomplished anything material for the defense. See Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). See also Commonwealth v. Knight, 437 Mass. 487, 502, 773 N.E.2d 390 (2002).

The defendant also argues that defense counsel's objection to the admission in evidence of statements made by the victim to the owner of the bar was not forceful enough and that defense counsel erred in failing to object to the victim's statement to the investigating police officer. Because those statements were made by the victim...