Com. v. McCarthy

• Decision Date: 07 December 1981
• Citation: 428 N.E.2d 832,12 Mass.App.Ct. 722
• Parties: COMMONWEALTH v. John F. McCARTHY.
• Court: Appeals Court of Massachusetts

Page 832

428 N.E.2d 832

12 Mass.App.Ct. 722

COMMONWEALTH v. John F. McCARTHY.

Appeals Court of Massachusetts, Middlesex.

Argued Sept. 9, 1981.

Decided Dec. 7, 1981.

John C. Ottenberg, Boston, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GOODMAN and GRANT, JJ.

GOODMAN, Justice.

The defendant appeals from his conviction of rape and from the denial of his motion for a new trial. The motion for a new trial was brought by present counsel appointed after trial; he argues that trial counsel had prepared the case inadequately and tried it in a perfunctory manner. Our examination of the entire record before us convinces us that, on the contrary, trial counsel's performance was well "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), quoted in Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978). We find no indication that there was "behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Nor does present counsel show us how "better work might have accomplished something material for the defense." Commonwealth v. Adams, 374 Mass. at 727, 375 N.E.2d 681, quoting Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). Cepulonis v. Commonwealth, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2089, 2097, 427 N.E.2d 17.

It is not disputed, nor can it be, that the victim was raped and badly beaten during the early morning hours of May 11, 1978, in Fort Hill Park in Lowell. The only real question at trial was whether the defendant had committed the acts. Both the victim and the defendant, who testified in his own behalf, agree in large part on the events preceding the attack: the defendant and his friend, Anthony Ducharme, were riding in the defendant's car when they saw the victim standing outside a bar in Lowell at about 2:15 A. M. They invited her to take a ride with them; she did not know the defendant but she did know Ducharme. She got into the car in the front between the two men, and the three proceeded on their ride. They made a few stops-for gas, to pick up a hitchhiker and drop her off, and for oil. They then drove to the top of Fort Hill Park, an area known as "lover's lane." The victim testified that when the defendant tried to kiss her and asked her if she wanted to make a quick $100, ¹ she left the automobile and proceeded down the hill on foot. The defendant overtook her in his automobile and asked her to get back in the car. She refused and kept walking, and the defendant drove off out of the victim's sight. About five minutes later, as she testified, the attack occurred; someone came up behind her, pulled her jacket off and put it over her head, knocked her to the ground and raped her, all the while hitting her in the face and telling her not to remove the jacket. She was brutally beaten and hospitalized for about eight days. The victim could not see her attacker but identified his voice as the defendant's. She also heard another voice which she recognized as Ducharme's say, "Let her alone, that's enough." The defendant denied that he had raped the victim and testified that after stopping to ask her into the automobile he had gone directly home. The victim's account was generally confirmed by Ducharme.

The victim made her way to an apartment near the park and asked for help; her sister and brother-in-law were called. Her sister testified that the victim told her, "You know who did this to me ... Tony, Roseanne's boyfriend, and John the Reptile." (The victim had testified that the defendant had told her he was known by this name.) Defense counsel on cross-examination of the victim's brother-in-law elicited that he also heard the victim say, "It was Tony and a man by the name of John" whom she referred to as "John the Reptile." Other evidence and details of the proceedings will be discussed in connection with the various contentions raised by present counsel.

1. There is no basis for the defendant's contention here and at the hearing on the motion for a new trial that trial counsel's preparation constituted ineffective assistance of counsel. The trial judge, who also heard the motion for a new trial, found that trial counsel "requested and received all police reports and medical records. He conducted two office interviews with the defendant prior to trial and discussed the case with the defendant on several occasions by telephone. Through counsel he also interviewed the defendant's companion on the night in question .... He also chatted about the case prior to trial on a number of occasions with Sally McDonald, the defendant's girlfriend, with whom the defendant lived." ² Further, trial counsel represented the defendant at the probable cause hearing in the Lowell District Court, where the victim testified, and at the arraignment in the Superior Court. See Commonwealth v. Saferian, 366 Mass. at 94, 315 N.E.2d 878; Delle Chiaie v. Commonwealth, 367 Mass. 527, 537, 327 N.E.2d 696 (1975). Nor does present counsel, who presumably made his own investigation, show that further investigation would have uncovered anything which would have significantly helped the defendant's cause.

Present counsel, at the hearing on the motion for a new trial, did produce two witnesses who were long time friends of the defendant and would have testified that the defendant had a reputation as "not being a violent and sexually assaultive person and rather ... (as a) gentle person." Also, they would both have testified that they had never heard him called "John the Reptile."

The trial judge, in her findings on the motion for a new trial, held "that the evidence of the defendant's guilt was very strong." In the circumstances we agree with the trial judge's assessment that the proposed testimony of the two witnesses would not "have had any likely effect on the jury's verdict." Failure to produce it did not "likely deprive ( ) the defendant of an otherwise available substantial ground of defense." Commonwealth v. Saferian, 366 Mass. at 96, 315 N.E.2d 878. It seems inconceivable that such testimony, "muted and colorless" as it generally is (McCormick, Evidence § 191, at 456 (2d ed. 1972)), would have altered the jury's decision to believe the victim rather than the defendant. That trial counsel "failed to call an additional witness ... to bolster the defense" does not establish counsel's ineffectiveness. Commonwealth v. Rondeau, 378 Mass. 408, ---, Mass.Adv.Sh. (1979) 1668, 1675, 392 N.E.2d 1001. Indeed, the introduction of reputation evidence might have been counterproductive, and this possibility might well have influenced trial counsel's tactical decision that such testimony should not be introduced. See Commonwealth v. Sellon, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 789, 794, 402 N.E.2d 1329; Commonwealth v. Stokes, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1980) 1627, 1629, 408 N.E.2d 887. From aught that present counsel has showed us, it does not appear that trial counsel did not reasonably fear to open a Pandora's box. A decision in a case of this kind not to introduce reputation evidence was nothing but a tactical choice which was not "manifestly unreasonable." Commonwealth v. Adams, 374 Mass. at 728, 730, 375 N.E.2d 681; Commonwealth v. Rondeau, 378 Mass. at ---, Mass.Adv.Sh. (1979) at 1674, 392 N.E.2d 1001; Commonwealth v. Sellon, --- Mass. at --- - ---, Mass.Adv.Sh. (1980) at 791-794, 402 N.E.2d 1329.

Present counsel also claims that trial counsel should have asked for a continuance further to investigate Ducharme when, to the surprise of trial counsel-and probably to the surprise of Ducharme himself-he was ordered, late in the trial, to testify although he had consistently refused to testify both at the arraignment and at the probable cause hearing. The order of the trial judge and the prosecution's promise not to prosecute put a different light on the matter, and Ducharme agreed to testify. ³ Trial counsel was thus faced with the dilemma of proceeding or asking for a continuance. He chose to proceed, and we will not fault him in this regard. He had already interviewed Ducharme and may well have made the choice to continue rather than give Ducharme an opportunity to think over his testimony. The decision to go ahead was purely tactical and certainly not "manifestly unreasonable."

Indeed, trial counsel's cross-examination indicates that he knew a great deal about Ducharme. He elicited that Ducharme was married and had two small children, which raised the stakes that he had in not being involved in the criminal acts. Trial counsel was also able to elicit testimony that Ducharme's memory was hazy, that he was intoxicated, that he kept falling asleep in the back seat of the car, and that he could not identify the victim when he saw her on the ground. ⁴ In addition, he elicited from Ducharme that a stereo was playing loudly the entire time the group was in the car. He also received and brought to the jury's attention a stipulation from the prosecution that Ducharme had been promised that he would not be prosecuted, though Ducharme had denied on cross-examination that he had received any such promise. Nor does present counsel tell us concretely what could have been accomplished by further investigation. His contention that trial counsel could have moved for the witness's criminal records is also abstract. "We look at the question of assistance of counsel as a practical not an abstract matter." Commonwealth v. Saferian, 366 Mass. at 98, 315 N.E.2d 878. Present counsel did not produce any criminal record which might have aided the defense; he did not dispute trial counsel's testimony that Ducharme "had some criminal record but not substantial." There is nothing to indicate that Ducharme's criminal record, if...