Com. v. Masonoff

• Citation: 70 Mass. App. Ct. 162,873 N.E.2d 252
• Decision Date: 18 September 2007
• Docket Number: No. 06-P-888.,06-P-888.
• Parties: COMMONWEALTH v. Christopher MASONOFF, Sr.
• Court: Appeals Court of Massachusetts

873 N.E.2d 252

70 Mass. App. Ct. 162

COMMONWEALTH v. Christopher MASONOFF, Sr.

No. 06-P-888.

Appeals Court of Massachusetts, Bristol.

Argued February 8, 2007.

Decided September 18, 2007.

Craig A. Souza, Assistant District Attorney, for the Commonwealth.

Elizabeth Caddick, Newton, for the defendant.

Present: GELINAS, McHUGH, & KATZMANN, JJ.

GELINAS, J.

After a joint jury trial with a codefendant, James DeCosta, in Superior Court, the defendant, Christopher Masonoff, was convicted of assault and battery by means of a dangerous weapon (a knife); possession of a controlled substance (PCP); and rape, a lesser included offense of aggravated rape.¹ The verdicts were returned on July 26, 1982, and the defendant took no further action with regard to his convictions until fifteen years later. On October 27, 1997, he filed a motion for a free transcript. Eventually, on December 4, 2001, those portions of the trial transcript that were still available were produced (volumes 5, 6, 8, and 9), and about seven months later, on July 15, 2002, the defendant filed a motion for new trial, which is the subject of this appeal. In his motion, the defendant claimed that his trial attorney was ineffective because he (1) failed to file a motion to sever; (2) failed to object to the admission of testimony concerning DeCosta's statement to the police; and (3) functioned under a conflict of interest.

As the trial judge was then deceased, the motion was decided by a second judge, after a nonevidentiary hearing. The judge concluded that the failure of the defendant's attorney to file a motion to sever constituted ineffective assistance of counsel, and on this basis alone, the judge allowed the motion. The Commonwealth has appealed.

We briefly summarize the facts as found by the motion judge, after his review of the available trial record. At about 1:30 A.M., on November 22, 1981, Officer John Gifford stopped a Cadillac automobile in Westport because he saw sparks coming from underneath the vehicle. When he approached the vehicle, the defendant was in the driver's seat, DeCosta was in the front passenger seat, and the victim was seated between the two men. She was undressed, crying, and yelling for help. The officer observed her elbowing the driver and demanding that he let her out of the vehicle.

The victim testified at trial, and her statement to police, which appears to have been consistent with her trial testimony, was admitted as fresh complaint evidence. She said that she had accepted a ride home from a bar with the defendant and DeCosta, but once in the vehicle they did not follow the directions that she gave with regard to the way to her home. At some point, the defendant put a knife to her throat and ordered her to take off her clothes. She hesitated, and the defendant pressed the knife harder against her neck. She complied, and the defendant ordered her to perform oral sex on DeCosta. While she was so engaged with DeCosta, the defendant inserted his fingers in her vagina and stopped the car. Headlights flashed into the car from behind and the defendant drove further down the road. Police lights were activated on the vehicle behind them and the defendant pulled to the side of the road. Officer Gifford approached the vehicle and observed the scene first described.

Officer Gifford arrested the defendant and DeCosta. Officer Charles Bouchard also arrived at the scene. He testified that he found a knife and a quantity of pills in the vehicle the defendant was driving. Officers Bouchard and Gifford both testified that they each saw a red mark on the side of the victim's neck.

The defendant spoke to Officer Gifford, and the officer recounted the following statement at trial.² The defendant said that he had met the victim at a bar and noticed her at the end of the night when she asked for a ride. During the ride, he and the victim began discussing money; after fifty-two dollars came into the conversation, she began removing her clothes. The defendant said they were looking for a place to stop, and pulled over to the side of the road when police lights were activated behind them. The defendant also told Officer Gifford that when the victim saw his buck knife, she removed it from its sheath and threw it to the floor, saying, "I don't want any freaky shit." According to the defendant, when the police lights were activated behind them, the victim said, "I'm not going to get bagged for this," and started crying. The defendant told Officer Gifford that they would find fifty-two dollars on the victim, but she was allowed to go to the restroom before the police checked her person. When she returned, Officer Gifford found between three and four dollars on her person.

Officer Gifford also testified to a written statement given by DeCosta.³ In the written statement, given at the station after the arrest, DeCosta said that he had fallen asleep after the three had started driving, and awoke when the defendant stopped to urinate. When the defendant got back in the car, DeCosta heard the victim say, "Don't stab me" several times before she began to take off her clothes. He then heard the defendant tell the victim to perform oral sex on him (DeCosta), and she complied, until the police cruiser appeared behind them. DeCosta heard the defendant tell the victim to put on her clothes. At trial, Officer Gifford admitted that DeCosta's initial statement to him indicated that the victim did not do anything against her will, but that after a few hours of interrogation, the more inculpatory version as set out above was memorialized in writing by DeCosta.

Officer Paul Holden was present with Officer Gifford when he questioned DeCosta at the police station, and during part of the interview with the defendant. Officer Holden testified at trial that DeCosta's statement was similar to Officer Gifford's account, adding that DeCosta denied seeing a knife.

Officer Gifford also testified that the day after the incident the victim returned to the police station and stated that she wanted to change her statement regarding the incident. She said that she felt sorry for the wives and families of the defendants. Officer Gifford showed her DeCosta's statement, and after reading it, she no longer wanted to change her statement.

At trial, DeCosta testified; his testimony mirrored in all material respects the defendant's statement to Officer Gifford on the night in question. He admitted that the victim had performed oral sex on him, but maintained that it was consensual. He testified that after he was arrested, the police officers told him not to worry because "she was a pro." DeCosta also testified that he had only given an inculpatory statement after he had been held for several hours, and after he had been told that the defendant had blamed him for the incident and that the police "would take it easy on him if he matched his statement to the victim's."

"On the Commonwealth's appeal of the grant of a defendant's motion for a new trial, we consider whether the judge committed a significant error of law or abuse of discretion in allowing the defendant's motion." Commonwealth v. Alvarez, 433 Mass. 93, 100-101, 740 N.E.2d 610 (2000). See Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). A judge may grant a motion for new trial only "if it appears that justice may not have been done."⁴ Commonwealth v. DeMarco, 387 Mass. 481, 482, 440 N.E.2d 1282 (1982). Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). "Judges are to apply the standard set forth in rule 30(b) rigorously and should only grant such a motion if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 635-636, 756 N.E.2d 1 (2001).

"In a new trial motion asserting ineffective assistance of counsel, whether justice may not have been done equates with whether counsel was constitutionally ineffective. If counsel's ineffectiveness deprived the defendant of an otherwise available substantial ground of defense, . . . then there has been prejudicial constitutional error, . . . and justice has not been done." Id. at 636, 756 N.E.2d 1. In reviewing the motion judge's decision, "we regard ourselves in as good a position as the motion judge to assess the trial record," which, in this case, was the sole basis for the judge's decision. Commonwealth v. Grace, 397 Mass. at 307, 491 N.E.2d 246. Commonwealth v. Hudson, 446 Mass. 709, 714, 846 N.E.2d 1149 (2006).

Here, the Commonwealth challenges the judge's conclusion that counsel was ineffective for failing to file a motion to sever. "In this Commonwealth severance is usually a matter within the sound discretion of the trial judge.... Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice time and energy to serve upon juries, and avoids the necessity of recalling witnesses to successive trials. . . . Such considerations, however, must yield at some point to the rights of the accused. That point is reached when the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial." Commonwealth v. Moran, 387 Mass. 644, 658, 442 N.E.2d 399 (1982).⁵

"An ineffective assistance claim based on the failure to bring a motion requires the defendant to show that the motion would likely have been granted." Commonwealth v. Diaz, 448 Mass. 286, 289, 860 N.E.2d 665 (2007). "The defendant has the burden of showing that prejudice resulted from the failure to sever. . . . Inconsistent trial strategies, hostility among defendants or a defendant's claim that he would have had a better chance of acquittal had he been tried alone do not establish prejudice." Commonwealth v. Miller, 17 Mass.App.Ct. 991, 992, 459 N.E.2d 136 (1984). Generally, severance will not be granted unless the defenses of the...