Com. v. Edward

• Citation: 912 N.E.2d 515,75 Mass. App. Ct. 162
• Decision Date: 02 September 2009
• Docket Number: No. 07-P-993.,07-P-993.
• Parties: COMMONWEALTH v. Chad EDWARD.
• Court: Appeals Court of Massachusetts

912 N.E.2d 515

75 Mass. App. Ct. 162

COMMONWEALTH v. Chad EDWARD.

No. 07-P-993.

Appeals Court of Massachusetts, Dukes County.

Argued September 4, 2008.

Decided September 2, 2009.

Cathleen E. Campbell, Salem, for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

Present: McHUGH, GRAINGER, & WOLOHOJIAN, JJ.

McHUGH, J.

In 1991, a Superior Court jury found the defendant, Chad Edward, guilty of rape of a child, G.L. c. 265, § 23; indecent assault and battery on a person who has attained the age of fourteen, G.L. c. 265, § 13H; and unnatural and lascivious acts with a child under the age of sixteen, G.L. c. 272, § 35A. He was sentenced on the rape conviction to twenty years at Massachusetts Correctional Institution at Concord.¹,² The defendant appealed, claiming that the trial judge incorrectly defined rape in his charge to the jury and that the defendant's trial attorney was ineffective because of his friendship with a fresh complaint witness. We rejected both claims and affirmed the judgment. See Commonwealth v. Edward, 34 Mass.App.Ct. 521, 613 N.E.2d 115 (1993).

In 2006, thirteen years after his direct appeal, the defendant, assisted by new counsel, filed a motion for a new trial, accompanied by a series of affidavits. In his motion, the defendant asserted that the courtroom had been closed during the testimony of the victim, in violation of his right to a public trial preserved by the Sixth Amendment to the Constitution of the United States and by art. 12 of the Declaration of Rights. He also claimed that the trial judge failed to instruct the jury contemporaneously on the limited use they could make of fresh complaint testimony, failed to define the term "corroborate" in his final jury charge, and failed to prohibit the victim from offering self-corroborating fresh complaint testimony. Finally, he asserted that his trial and his appellate counsel were ineffective for a variety of reasons discussed in more detail, infra.

The motion was denied without a hearing by a judge who had not been the trial judge.³ The motion judge ruled that the defendant had waived all of the claims by failing to raise them at trial or on appeal. Waiver, in the judge's view, meant that review of the claims was available only to the extent that the defendant could show ineffective assistance of counsel under the familiar standard set out in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). With respect to all but the public trial claim, the judge concluded that trial counsel's performance had not been deficient. Insofar as the public trial claim was concerned, the judge reasoned that no prejudice resulted from any deficiency in the way trial counsel handled the issue.

The defendant now appeals, asserting all of the grounds contained in his motion, and also asserting that he was entitled to an evidentiary hearing on the motion. We find no reason to disturb the motion judge's handling of any claim save that involving the public trial. As to that claim, a further hearing in the Superior Court is required.

1. Scope and standard of review. The facts of the case are set out in our earlier opinion, see Edward, supra at 522, 613 N.E.2d 115, and need not be repeated here. In reviewing the denial of a new trial motion, "we examine the motion judge's conclusion only to determine whether there has been an abuse of discretion or other error of law." Commonwealth v. Raymond, 450 Mass. 729, 733, 881 N.E.2d 144 (2008). Because here the motion judge did not preside at trial, we "regard ourselves in as good a position as the motion judge to assess the trial record." Ibid., quoting from Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). In assessing that record, we keep in mind that, "[i]n a motion for a new trial, the burden is on the defendant to prove facts that are `neither agreed upon nor apparent on the face of the record.' In posttrial proceedings, the defendant bears the burden to rebut the presumption that [he] had a fair trial." Commonwealth v. Comita, 441 Mass. 86, 93, 803 N.E.2d 700 (2004) (citations omitted).

The defendant already has had a direct appeal in which he raised none of the claims he asserts here. Consequently, his substantive claims, except for the claim involving his right to a public trial, are waived, for waiver occurs when a litigant fails to raise at trial or on appeal a claim that he could have raised. See, e.g., Commonwealth v. Mahar, 442 Mass. 11, 13 n. 4, 809 N.E.2d 989 (2004); Commonwealth v. Terzian, 61 Mass.App.Ct. 739, 746 n. 9, 814 N.E.2d 370 (2004).⁴ But "[a] finding of waiver does not end the analysis.... [In a subsequent proceeding, a]ll claims, waived or not, must be considered. The difference lies in the standard of review that we apply when we consider the merits of an unpreserved claim." Commonwealth v. Randolph, 438 Mass. 290, 293-294, 780 N.E.2d 58 (2002) (footnote omitted). We review unpreserved claims of error and claims of ineffective assistance of counsel based on failure to preserve claims of error using the same standard, i.e., whether the error gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 685, 760 N.E.2d 1224 (2002); Commonwealth v. Baran, 74 Mass.App.Ct. 256, 273-274, 905 N.E.2d 1122 (2009).⁵ To decide whether there was a substantial risk of a miscarriage of justice, in turn, requires us to consider four related questions:

"(1) Was there error? ... (2) Was the defendant prejudiced by the error? ... (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? ... (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision? ... Only if the answer to all four questions is `yes' may we grant relief."

Randolph, supra at 297-298, 780 N.E.2d 58.

With limited exceptions, the foregoing rules regarding waiver and its consequences apply equally to constitutional and nonconstitutional claims. See Commonwealth v. Balliro, 437 Mass. 163, 166, 769 N.E.2d 1258 (2002); Commonwealth v Hicks, 50 Mass.App.Ct. 215, 217, 736 N.E.2d 431 (2000). The public trial claim the defendant has asserted here is one such exception, so we defer discussion of the rules applicable to that claim until after we apply the rules just discussed to the other claims the defendant has asserted.

2. Fresh complaint claims. As noted supra, the defendant claims that the trial judge (1) failed to instruct contemporaneously on fresh complaint, (2) did not properly define the term "corroborate" in the final jury charge, and (3) allowed the victim to self-corroborate her testimony.⁶

Treating the claims of error in order, although a contemporaneous fresh complaint instruction is recommended, it is "not a strict requirement." Commonwealth v. Vieux, 41 Mass.App.Ct. 526, 533, 671 N.E.2d 989 (1996), cert. denied, 520 U.S. 1245, 117 S.Ct. 1855, 137 L.Ed.2d 1056 (1997). See Commonwealth v. Lorenzetti, 48 Mass.App.Ct. 37, 40-41, 716 N.E.2d 1067 (1999) (although contemporaneous instructions were erroneous, error was cured by final instructions).

As for the alleged failure to explain the term "corroborate," the judge spent approximately two and one-half transcript pages forcefully limiting the use the jury could make of the testimony given by fresh complaint witnesses. Among other things, he told the jurors that the testimony could be used only for:

"corroboration to support, buttress the testimony of the alleged victim. That means that you may take such statements into account when you evaluate the credibility [a word he had explained earlier in the charge] of the victim's testimony on the witness stand here at trial. You may not consider such statements as positive evidence that the offenses occurred. They are admitted into evidence for your consideration solely to assist you in determining how much weight you give to the victim's testimony in this trial about what happened.... As I said earlier, the purpose of this evidence is strictly limited to determine the credibility of [the victim's] testimony and whether or not it is corroborative of her testimony here in court."

The defendant bases his corroboration claim on Commonwealth v. Scanlon, 412 Mass. 664, 674, 592 N.E.2d 1279 (1992), a case decided after this case was tried. There, the Supreme Judicial Court said that "[a]n instruction that [fresh complaint] evidence may be used only to corroborate the complaining witness's testimony, without a definition of the term corroboration, does not alleviate the risk that the jury would use such evidence substantively." Ibid. See Commonwealth v. Lorenzetti, supra at 40 n. 3, 716 N.E.2d 1067. Even if the decision in Scanlon applies to the instructions given in this case, the instruction did not use the word "corroborate," without explanation. Indeed, the judge anticipated the Supreme Judicial Court's decision in Commonwealth v. Licata, 412 Mass. 654, 660, 591 N.E.2d 672 (1992), when he said that the fresh complaint testimony could not be used "as positive evidence that the offenses occurred." Moreover, he used the words "support" and "buttress" as synonyms immediately after he used the word "corroborate," and told the jury twice that they could use the testimony only in evaluating the victim's credibility. Considered as a whole, see Commonwealth v. Raymond, 424 Mass. 382, 386, 676 N.E.2d 824 (1997) the instruction adequately and clearly defined the limited use the jurors could make of the fresh complaint testimony. See generally Commonwealth v. Shiek, 42 Mass.App.Ct. 209, 212, 675 N.E.2d 805 (1997).

Lastly, the defendant claims that the victim engaged in impermissible self-corroboration when she testified that she told eleven people about the defendant's conduct. See Commonwealth v. Peters, 429 Mass. 22, 28, 705 N.E.2d 1118 (1999) ("while a...