Com. v. Juzba
| Decision Date | 30 March 1999 |
| Docket Number | No. 97-P-1009,97-P-1009 |
| Citation | 705 N.E.2d 1148,46 Mass.App.Ct. 319 |
| Parties | COMMONWEALTH v. Kevin JUZBA. |
| Court | Appeals Court of Massachusetts |
Eric S. Brandt, Committee for Public Counsel Services, for the defendant.
Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.
Present: BROWN, PORADA, & GREENBERG, JJ.
On appeal from his convictions of rape (second offense) and indecent assault and battery, the defendant claims that his trial counsel was ineffective in failing to introduce in evidence an exculpatory police chemist's report; to object to inadmissible fresh complaint testimony; and to inform the Commonwealth of a potential defense witness until the first day of trial in violation of her pretrial obligations. The defendant also claims that the case must be remanded for resentencing because the judge, in imposing the sentence, improperly relied on his express personal belief that the defendant had given false testimony. We affirm the conviction for rape but remand the case to the Superior Court for resentencing and reverse the conviction for indecent assault and battery for the reasons stated.
We summarize the pertinent evidence. On a stormy February evening, the victim, who was twenty-six years old and suffered from cerebral palsy, decided to spend the night in the home where she was baby-sitting. She went to sleep in a room which her employer had rented to the defendant but which she customarily used when she stayed overnight. The defendant was not home when she went to bed. Later that evening, the defendant returned home and demanded that the victim leave the room. The victim testified that when she refused, the defendant pulled her from the bed, pinned her to the floor, and choked her to unconsciousness. When she regained consciousness, she testified that her pajama bottoms and underwear were off and the defendant, who was naked, was lying on top of her. She testified that she attempted to fight the defendant off but he began choking her, causing her to black out for a second time. When the victim next awoke, the defendant was sitting on the bed, smoking a cigarette. The victim testified that she put her pajamas back on and fled the room. The victim then drove to a hospital where she told emergency room personnel that she had been raped, that she did not know if the defendant had penetrated her, and was uncertain if the defendant had ejaculated. The victim also reported that she had not had a prior romantic relationship with the defendant.
The doctor, who examined the victim after the alleged rape, testified that her examination revealed bruises on her neck, rib cage, and back; a slight tenderness at the opening of the vagina; and a one centimeter vaginal laceration, which was oozing blood slightly and appeared to be fresh. The doctor stated that she could not say how old the laceration in the vagina was and that the laceration was unusual in consensual sex or in rape cases.
The defendant testified that the victim and he had an intimate relationship prior to the evening in question and that any sexual activity on the night in question was consensual. He testified that he did not know if penetration occurred and that he had not ejaculated during the sexual activity. He also testified that the victim became upset and aggressive when he told her he was moving out of the apartment and that he had to use force to restrain her from hitting him. He further testified that the teeth marks and bruises on the victim were precipitated by a "rough-housing" session with her and the children for whom she was baby-sitting the day before the incident.
A State police officer testified that she took a statement from the victim in the emergency room during which the victim asserted that she had been raped by the defendant and that the defendant, immediately following the incident, and while he was smoking a cigarette, had said to her, "It was good for me; was it good for you?" Another State police officer testified that the defendant, when questioned about the incident, denied that he had raped the victim and said that the sex was consensual. The officer also testified that he observed a scratch on defendant's neck, which the defendant was unable explain. At trial, the defendant testified that he was scratched by the victim during the incident.
1. Ineffective assistance of counsel. (a ) Police chemist's test results. The defendant claims his counsel was ineffective because she failed to introduce in evidence results of the police chemist's lab report which revealed that the vaginal specimens taken from the victim did not disclose the presence of sperm cells or seminal fluid and that a pair of underpants tested positive for the presence of blood. The defendant argues that this evidence was material because the absence of sperm and seminal fluid would buttress his claim that there was no penetration. He also claims that the blood stain would have shown that the laceration in the victim's vagina was probably present prior to the incident in question because the victim had worn the underpants before, but not after, the incident, thus rebutting the Commonwealth's reliance upon the laceration as evidence of penetration.
There is no question that defense counsel's performance fell below what was expected from an ordinary fallible lawyer, Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), in either failing to secure the attendance of the police chemist to testify to the results of his examination or in proffering so much of the report that was admissible under G.L. c. 22C, § 41. Although defense counsel was given numerous opportunities to summons the chemist or to provide a statutory basis for the admissibility of the report, she never filed a motion to summons the chemist, requested a continuance to secure his attendance, or proffered so much of the report as was admissible under G.L. c. 22C, § 41.
Defense counsel was apparently unaware of the provisions of G.L. c. 22C, § 41, which provides that a certificate by a State police chemist of the results of his "analysis ... for the presence of a sperm cell or cells or seminal fluid ... shall be prima facie evidence of the presence of a sperm cell or cells or seminal fluid...." G.L. c. 22C, § 41, inserted by St.1991, c. 412, § 22. Although the statutory language used refers to the admissibility of the certificate as prima facie evidence of the presence of a sperm cell or cells or seminal fluid, the statute was obviously intended to provide for the admissibility of the results of the police chemist's examination by means of a certificate for the presence, as well as the absence, of sperm or seminal fluid. In acting as counsel for a defendant accused of rape, an ordinary, fallible lawyer would have been expected to know of the existence of this statute, particularly when the judge had given counsel days to return to court with supporting law for the admissibility of the report. Cf. Commonwealth v. Childs, 23 Mass.App.Ct. 33, 36-37, 499 N.E.2d 299 (1986), S.C., 400 Mass. 1006, 511 N.E.2d 336 (1987).
The question then becomes whether her failure to do so resulted in the likely loss of an available, substantial defense. Commonwealth v. Saferian, 366 Mass. at 96, 315 N.E.2d 878. We do not believe it did. At best, the test results showing the absence of sperm or seminal fluid simply corroborated the defendant's testimony that he did not ejaculate. These test results did not contradict the victim's version of the incident for the victim had admitted that she was uncertain whether the defendant had ejaculated or had penetrated her. Nor did these test results rebut the Commonwealth's reliance on the results of victim's medical examination following the incident disclosing a fresh laceration within the vagina and tenderness at the vaginal opening as proof of penetration. See Commonwealth v. Elder, 389 Mass. 743, 753, 452 N.E.2d 1104 (1983) (). Accordingly, given the fact that the Commonwealth need not prove ejaculation to establish the crime of rape, better work would not have accomplished something material for the defendant. Commonwealth v. Satterfield, 373 Mass. 109, 115, & n. 10, 364 N.E.2d 1260 (1977).
Similarly, we do not think that the defendant was likely deprived of...
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