Commonwealth v. Beaulieu

• Decision Date: 21 December 2016
• Docket Number: No. 15–P–69.,15–P–69.
• Citation: 68 N.E.3d 644
• Parties: COMMONWEALTH v. Donna BEAULIEU.
• Court: Appeals Court of Massachusetts

68 N.E.3d 644

COMMONWEALTH

v.Donna BEAULIEU.

No. 15–P–69.

Appeals Court of Massachusetts, Essex.

Argued April 12, 2016.

Decided Dec. 21, 2016.

Andrew P. Power for the defendant.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Present: COHEN, RUBIN, & HANLON, JJ.

HANLON, J.

After a jury trial, the defendant, Donna Beaulieu, was convicted of assault and battery on her teenage daughter.¹ Approximately one week later, the victim recanted; the defendant then filed a motion for a new trial based solely on the recantation. After an

evidentiary hearing, the motion was denied. The defendant now appeals from the denial of her motion for a new trial, arguing that the judge abused his discretion by "berating" the recanting witness and threatening her with incarceration for testifying in support of the defendant's motion.

The defendant also appeals from her underlying conviction on three grounds. First, she argues that the judge abused his discretion by admitting evidence at trial of prior bad acts. Second, she alleges counsel was ineffective for failing to object to that evidence and for calling a police witness who gave damaging testimony. Finally, the defendant contends that the judge erred in denying her motion for a required finding of not guilty, given what she describes as a lack of identification evidence at trial. We affirm.

Background. a. The trial. The jury heard the following evidence. On April 22, 2013, the victim, a middle school honor student, became ill at school; she went to the school nurse's office, and, afterwards, her mother picked her up and took her home. When she arrived at home, she rested on the couch for a few hours, then had dinner and started working on her homework in the kitchen. At some point later, her mother called her into the living room; her mother was "frustrated" because she was having difficulty using a Web site relating to their cellular telephones. When the victim came into the living room, her mother was "in ... a bad mood overall" and began yelling at the victim about "just everything" and for not filling out an "award sheet."

The victim went into another room to fill out the award sheet on her own, as she did not want her mother's help.² When she was putting the completed form into her bag, her mother asked to review the sheet to make sure it was done correctly. When the victim refused (because she believed she had completed the form correctly and did not want her mother to change it), her mother became "very angry," "mean," and "cold." The mother then took the sheet from the victim, as well as the wooden pencil she was using. The victim decided to "diffuse the situation" by showering while her mother was looking over what the victim had written.

When the victim returned to the living room after her shower, she asked her mother for the award sheet back; the mother refused, saying that the victim did not need the sheet and that "[she] did it wrong." After asking a few more times, the victim started backing away from her mother, "because [the victim] [knew] that [her mother] has a very violent, like, cycle"; "when things get [the defendant] upset, sometimes she resorts to violence and physical punishment." When the victim began walking upstairs to her bedroom, her mother followed, and then shoved the victim several times in the right arm causing her to hit her left arm against the wall; at the same time, the eraser top on the pencil the defendant was holding jabbed into the victim's side "causing a very small bruise." After she followed the victim upstairs and into her bedroom, the victim's mother hit her in the face with the palm of her hand, producing a swollen lip when the victim's tooth cut into her lip.

At school the next day, one of the victim's friends noticed that the victim was "unusually upset," and the friend asked her what was wrong. The victim told her friend that she had gotten into a fight with her mother the previous night, and showed her friend the bruise on her arm that "was a lot worse than [she] thought it was."³ Another friend brought the victim to the guidance office, where the victim told the counsellor what had happened the night before; the victim then went to the school nurse's office, where she spoke with the school principal and Saugus Police Detective Sean Moynahan.⁴ The victim was taken directly to the hospital.

At trial, the victim testified that her mother had been hitting her at least two times each month for the last three or four years (beginning after her brother moved out); the victim never reported this abuse to anyone, including her pediatrician, friends, or neighbors, and the police were never called. Her mother hit her, causing bruises, in places on her body that were usually covered with clothing. On cross-examination, the victim read aloud a complimentary school essay that she had written about her mother (approximately one month before the incident occurred). In the essay, the victim described her mother as "brave and courageous and admirable."

Moynahan, testifying as a defense witness, stated that he had a brief conversation with the victim at the school nurse's office, where she was sitting with ice on her arm in the nurse's office; he opined that the victim was "very articulate, very intelligent. She was very upset and sad. She was—in the school she was in an extreme amount of pain." Moynahan confirmed that he had taken photographs of the victim's injuries in the nurse's office, although he seemed confused about which arm he had photographed and which arm the defendant had grabbed. It was at the hospital that the victim told Moynahan the details of the incident, and he saw that she had "an extensive injury" on her left arm; the victim also told Moynahan that the abuse by the defendant had been ongoing since she was in the fifth grade.

After he returned to the police station, Moynahan telephoned the defendant and requested that she come to the police station; when the defendant arrived, she was arrested. The defendant also testified and denied ever abusing the victim.

b. Motion for a new trial. Approximately one week after the trial, the victim, who had been placed by the Department of Children and Families in the home of her aunt, attempted to reach her mother. The defendant's counsel responded to the victim and explained that the defendant was not permitted to have contact with her. The victim then sent a letter to defense counsel, addressed "To Whom It May Concern." In the letter, she "recant[ed] everything from [her] testimony," and "just want[ed] to make things right and go home to [her] [m]om." This letter and an affidavit from defense counsel were presented with the defendant's motion for a new trial.

On June 26, 2014, at a hearing on the defendant's motion for a new trial, the judge expressed his concerns and announced that he would research the remedies for punishment available to him if the victim acknowledged perjuring herself at trial. He stated more than once that he considered perjury a serious matter and that there likely would be consequences if the victim admitted under oath that she had committed perjury.⁵ Finally, he said that he wanted to "give everyone the weekend to think about" the victim's

recantation.

At the hearing, approximately one week later, the victim was the only witness. She testified that she had lied during her trial testimony about her mother's abuse, and that, after she told the lie, she felt she could not take it back because she was afraid and intimidated by the police and also by her aunt. Her new explanation for her injuries was that she had been attacked in the school bathroom by two female students; she was unsure of their full names.

The judge denied the defendant's motion, stating that he had found "the victim's trial testimony compelling and consistent with other evidence admitted in the case and her testimony on the [m]otion for [n]ew [t]rial less so and inconsistent with other independent evidence." The defendant timely appealed.

Discussion. a. Denial of the motion for new trial. "In reviewing an order granting or denying a motion for a new trial, we accord deference to the views of a motion judge who was also the trial judge." Commonwealth v. Spray, 467 Mass. 456, 471, 5 N.E.3d 891 (2014), quoting from Commonwealth v. LeFave, 430 Mass. 169, 176, 714 N.E.2d 805 (1999). "The decision to grant or deny a motion for a new trial ‘is left to the sound discretion of the motion judge.’ " Id. at 472, 5 N.E.3d 891 quoting from Commonwealth v. Jones, 432 Mass. 623, 633, 737 N.E.2d 1247 (2000).

We consider first the defendant's claim that, given the brevity of his decision, the judge abused his discretion by failing to give the victim's recantation adequate consideration. On that issue, we are satisfied that the judge, who heard all of the trial evidence, as well as the victim's recantation at the motion hearing, was entitled to find that the evidence presented at the motion hearing simply failed to cast doubt on the truthfulness of the victim's trial testimony. See Commonwealth v. Rebello, 450 Mass. 118, 131, 876 N.E.2d 851 (2007). The defendant did not request further findings, and none were required. Implicit in the judge's rejection of the recantation and his denial of the motion for a new trial was his assessment

that the victim's new testimony would be so vulnerable to impeachment at a new trial that it would be "relatively worthless." Commonwealth v. Santiago, 458 Mass. 405, 415, 937 N.E.2d 965 (2010), quoting from Commonwealth v. Ortiz, 393 Mass. 523, 537, 471 N.E.2d 1321 (1984). There was no abuse of discretion.

The defendant next argues that the judge committed an abuse of discretion by "berating" and "threatening" the victim at the first day of the hearing on the motion for a new trial. We disagree. Generally, it is not inappropriate for a judge to warn someone proposing to recant that perjury carries consequences, including, possibly, incarceration.⁶ A judge may remind a witness...