Com. v. Rosadilla-Gonzalez

• Decision Date: 22 July 1985
• Docket Number: ROSADILLA-GONZALEZ
• Citation: 480 N.E.2d 1051,20 Mass.App.Ct. 407
• Parties: COMMONWEALTH v. Jorge
• Court: Appeals Court of Massachusetts

Page 1051

480 N.E.2d 1051

20 Mass.App.Ct. 407

COMMONWEALTH v. Jorge ROSADILLA-GONZALEZ.

Appeals Court of Massachusetts,

Suffolk.

Argued March 15, 1985.

Decided July 22, 1985.

Adah Rose Bitterbaum, Boston (Thomas Hoffman, Boston, with her), for defendant.

Robert N. Tochka, Asst. Dist. Atty., for Commonwealth.

Before WARNER, ROSE and FINE, JJ. ROSE, Justice.

A jury returned verdicts of guilty on separate indictments charging the defendant with assault and battery by means of a dangerous weapon, assault with intent to murder, and armed robbery. On appeal, the defendant complains of prosecutorial misconduct, ineffective assistance of counsel and erroneous rulings or abuses of discretion on the trial judge's part. We affirm all three judgments.

Both the defendant and the victim had been "boat people," Cuban nationals permitted to enter the United States. The defendant had been in prison in Cuba; the victim's past was not revealed at trial, beyond the fact that he had been a farmer. Both men worked at the Suffolk Downs race track.

There was evidence that on January 12, 1983, the victim had cashed his paycheck and that the defendant was complaining of pecuniary embarrassment. Some time that morning, the defendant and the victim quarrelled over the defendant's performance of a task. The victim's employer overheard the defendant threaten: "I'm going to get the little Cuban tonight." Later, the defendant invited the victim home for dinner, to be followed by a movie in Boston. They left the track together at approximately 6:00 P.M.

There was testimony that on the way to the defendant's home the victim and the defendant stopped at a liquor store, where the defendant (who spoke English, the victim did not) purchased a pint of vodka or gin, some cola and some cigarettes. The victim gave him ten dollars or so to make the purchase, and, later, another twenty dollars to defray the expense of the trip to the movies.

The defendant, his girlfriend, and the victim had drinks and dinner at the defendant's apartment and then departed for Boston. Before they left the house, the victim saw the defendant slip a steak knife into his sock. The defendant explained to the victim that Boston was filled with robbers against whom protection was necessary. ¹

The threesome did not see a movie that night. Instead, they wandered around the Combat Zone and eventually ended up, between 9:00 P.M. and 9:30 P.M., in the lounge of the Benihana Restaurant on Stuart Street, where they ordered one or two rounds of drinks. The bartender testified that none of them appeared drunk. His opportunity to make this observation was good because they were the only patrons in the lounge area.

The testimony diverged on what happened next. The bartender testified that he went into a storage area. When he returned, minutes later, only the victim remained; he was slumped over the table and bleeding, and he named the defendant as his attacker. The defendant and his girlfriend testified that they left the bar, without injuring the victim, when he made unwelcome advances to the girlfriend. The victim testified that the defendant, without reason, stabbed him in the neck with a knife, robbed him, but replaced twenty-two dollars, then grabbed his girlfriend and fled.

1. The trial.

(a) The standard under which we review claims of ineffective assistance of counsel is articulated in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We engage in "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior ... falling measurably below that which might be expected from an ordinary fallible lawyer--[that] has likely deprived the defendant of an otherwise available, substantial ground of defense." In so examining a case, we bear in mind that "[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

The defendant first accuses his lawyer ² of a gross error of judgment in embracing as a defense the position that the defendant did not stab the victim when the evidence tended strongly to justify the jury's reaching the contrary conclusion. However, in the absence of a properly supported claim that trial counsel forced the defendant to plead not guilty, we must assume that the defendant freely chose to deny his guilt on all of the indictments. This being so, the defendant may not tax his lawyer with the consequences of what turned out to be a misjudgment on the defendant's part. An ineffective assistance claim is supported by a record that discloses the destruction of existing defenses, not an attorney's failure to manufacture a defense over the defendant's objection, or contrary to the truth as the defendant sees it.

The defendant's next complaint is that his lawyer left him denuded of a defense, see Commonwealth v. Street, 388 Mass. 281, 287, 446 N.E.2d 670 (1983), by arguing provocation to the jury and emphasizing the thinness of proof of the defendant's attempt to rob the victim rather than focusing only on such facts as would tend to show the defendant to be not guilty of any of the charges. We note first that counsel presented those arguments as hypotheticals for the jury to consider if they should decide beyond a reasonable doubt that the defendant had stabbed the victim, a decision that the defendant has already conceded was probably inevitable.

It is plain to us that when the time came to argue to the jury, counsel had concluded that all he could do was ask them to find his client not guilty on the armed robbery indictment and endeavor to reduce (by virtue of lack of deliberate premeditation) assault with intent to murder to assault with intent to kill. "Counsel's strategy failed, but we are not on that account to say that it was impermissible." Commonwealth v. LeBlanc, 364 Mass. 1, 13, 299 N.E.2d 719 (1973).

During his closing statement, trial counsel developed the hypothesis that the defendant had stabbed the victim because he was enraged at the victim's conduct toward his girlfriend. The victim, counsel suggested, could have contrived the robbery story because he could not bring himself to admit to the unbecoming conduct that in reality provoked the attack. To lend additional plausibility to this theory, counsel noted that in a Cuban cultural environment, such conduct toward an "attached" woman is not only frowned upon, but is viewed as an offensive and disrespectful form of behavior, more so than in this country.

The defendant contends that those remarks, and others in a similar vein, "appeal[ed] to prejudice based on national origin, and thus '[swept] jurors beyond a fair and calm consideration of the evidence.' " Commonwealth v. Graziano, 368 Mass. 325, 332, 331 N.E.2d 808 (1975), quoting from Commonwealth v. Perry, 254 Mass. 520, 531, 150 N.E. 854 (1926). The appeal of those remarks plainly was to the jury's sympathy toward a "wronged man" and to their common understanding that a certain act will give rise to different degrees of offense or embarrassment in different cultures. ³ Counsel's strategy did not create unfair prejudice to the defendant.

(b) Many of the defendant's grievances concerning the trial judge's rulings are founded on the mistaken impression that we evaluate the judge's decisions only in light of the partisan abridgement of the transcript that the defendant has presented in his brief. A prime example of this misconception is the defendant's assertion that the judge erred in interrupting cross-examination of the victim for two days. However, the complete transcript reveals that the month was January, a snowstorm threatened, and that the victim was partially paralyzed and still in a wheelchair by reason of the stabbing. In the circumstances it was not an abuse of discretion to interrupt the victim's testimony.

The defendant's remaining complaints respecting the judge's rulings focus on the alleged denial of his right to confront witnesses, especially the victim. "Reasonable cross-examination for the purpose of showing falsity of other testimony of the witness or bias or prejudice on his part is a matter of right." Commonwealth v. Russ, 232 Mass. 58, 79, 122 N.E. 749 (1919). A denial of this right is the denial of the constitutional right to confront witnesses. See Commonwealth v. Bohannon, 376 Mass. 90, 94, 378 N.E.2d 987 (1978). Defense counsel's cross-examination of the victim was directed at establishing that for three weeks after the stabbing the victim made no complaint of robbery, and did complain only after he learned that some of the cash he thought he had was missing.

To make the robbery charge appear as a recent fabrication, defense counsel introduced the testimony of hospital personnel and police investigators and the reports they wrote between the time of the stabbing and the time the victim made robbery accusations. These reports made no mention of a robbery. All those witnesses testified; their reports were admitted in evidence and were available to the jury during their deliberations. During his closing statement counsel forcefully emphasized the inconsistencies in the victim's testimony. "[T]he courts of this Commonwealth have recognized that [the right to cross-examine witnesses] is not necessarily infringed by curbing inquiry where the matters sought to be elicited have been sufficiently brought to the attention of the trier of fact through other questioning or other means." Commonwealth v. Walker, 370 Mass. 548, 572, 350 N.E.2d 678 (1976), cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976). On appeal, however, the defendant, pointing to only two places in the transcript, argues that the judge repeatedly thwarted his effort to...