Commonwealth v. Berry

• Docket Number: 22-P-1177
• Decision Date: 18 January 2024
• Parties: COMMONWEALTH v. WILLIAM BERRY.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH
v.
WILLIAM BERRY.

No. 22-P-1177

Appeals Court of Massachusetts

January 18, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, after a jury trial, the defendant was convicted of aggravated rape, aggravated burglary, and breaking and entering in the nighttime with intent to commit a felony. In 2021, the defendant filed a motion for new trial. In 2022, after a nonevidentiary hearing before a Superior Court judge, who was not the trial judge, the motion was denied. In the defendant's consolidated appeals from his convictions and from the denial of his motion for new trial, the defendant claims that he received ineffective assistance of counsel; that the evidence was insufficient to prove the break-in occurred in the nighttime; that there were errors in the prosecutor's opening statement, cross-examination of the defendant, and closing argument; that

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certain convictions were duplicative;^[1] and that the trial judge abused his discretion by declining to allow the defendant to stipulate that he had sexual intercourse with the victim in lieu of having the Commonwealth present deoxyribonucleic acid (DNA) evidence. We affirm in part, reverse in part, and remand for resentencing.

1. Ineffective assistance of counsel.

In his motion for new trial, the defendant claimed that his trial counsel provided ineffective assistance by failing to consult experts to support a defense that the victim consented to have sex with him but could not recall having done so due to the effects of intoxication on memory. In support of his motion, the defendant submitted affidavits from a Florida psychiatrist,^[2] a psychologist, and his trial counsel. In a supplemental filing, the defendant added an affidavit from a third doctor as a substitute for the Florida psychiatrist, who had retired. As the motion judge determined, the defendant's claim lacks merit.

We review the denial of a motion for new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Where the defendant claims ineffective

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assistance of counsel, a new trial is warranted only if the defendant shows that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant bears the burden of proving any fact that is not supported by the trial record. See Commonwealth v. Watson, 455 Mass. 246, 256 (2009); Commonwealth v. Comita, 441 Mass. 86, 93 (2004); Commonwealth v. Schand, 420 Mass. 783, 788 n.1 (1995).

As stated above, the defendant claims that trial counsel's failure to consult experts on intoxication and its effect on memory was ineffective. By not pursuing such a theory, the defendant claims, trial counsel deprived him of the defense that he might reasonably have perceived the victim to be capable of consent even though she was experiencing an alcohol-induced blackout. This, in turn, might have prevented the Commonwealth from carrying its burden to show that the defendant knew or should have known the victim lacked the capacity to consent to sexual intercourse due to her intoxication.

"An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable

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when made." Commonwealth v. Frank, 433 Mass. 185, 190 (2001), quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). Under the first prong of Saferian, "[i]f the record reveals sound tactical reasons for counsel's decisions, an ineffective assistance of counsel claim will not succeed." Commonwealth v. Gonzalez, 443 Mass. 799, 809 (2005). "The critical inquiry is whether counsel's choice was an informed and reasonable decision; a consideration to be assessed in light of his overall representation of the defendant at the trial." Frank, supra at 192.

We conclude that trial counsel's decision to not call expert witnesses on memory and intoxication was not manifestly unreasonable. The defendant's trial counsel averred that he was "very familiar with the literature and research involving perception and memory," had used experts on these subjects in prior cases, and "gave serious consideration to the pros and cons" of calling such witnesses in the defendant's case. Even with his familiarity with the subjects, trial counsel decided to not call such witnesses because he feared the experts would have been subject to potentially damaging cross-examination.

This case stands on a different footing from cases where defense counsel was ineffective for not having his own client evaluated by a mental health expert where counsel had notice of a potential issue of lack of criminal responsibility. See, e.g., Commonwealth v. Roberio,

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428 Mass. 278, 279-280 (1998). The experts the defendant now proposes, who did not interview the victim, could have offered only general testimony about the effects of intoxication on cognitive function and memory based on the facts of this case. Moreover, as the defendant's trial counsel noted in his affidavits, calling an expert who would state that a person could be so intoxicated that she could experience a blackout would run the risk of highlighting the Commonwealth's evidence that the victim was so intoxicated that she was incapable of consenting to sex. See Frank, 433 Mass. at 191 (not ineffective for counsel to choose not to use intoxication expert because he feared potentially damaging cross-examination).^[3]

Even if trial counsel's choice was manifestly unreasonable, the defendant cannot satisfy the second prong of Saferian, i.e., that he was deprived of a substantial ground of defense. The essence of the defendant's post-trial theory is that the proposed experts would have permitted the jury to reconcile the defendant's account with the victim's, without the defendant having to maintain that the victim had lied. Here again, as the motion judge noted, neither expert would have been permitted to

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opine on the victim's state of intoxication and how it affected the accuracy of her memory. Admissible expert opinion requires that the scientific theory on which the expert relies must be able to be "applied to the particular facts of the case in a reliable manner." Commonwealth v. Polk, 462 Mass. 23, 31 (2012). That would not have occurred here. In fact, the experts could have testified only about the general characteristics of blackouts and manipulated memory; they could not have properly opined that the victim exhibited these characteristics. The defendant has merely proposed an alternative defense theory of how his case could have been tried. But that does not establish that the reasonable theory on which it was tried, even though it failed, was the result of ineffective assistance. See Commonwealth v. Denson, 489 Mass. 138, 152 (2022).

2. Sufficiency of the evidence of nighttime.

The defendant claims there was insufficient evidence to establish that the break-in at the victim's apartment occurred in the nighttime, as required for convictions under G. L. c. 266, §§ 14, 16, and G. L. c. 265, § 22 (a). We disagree.

"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Commonwealth v. Hartnett,

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72 Mass.App.Ct. 467, 475 (2008), quoting . . . Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152 (1999). . . . Rather, the relevant "question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting . . . Jackson v. Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009). We add that "circumstantial evidence is competent to establish guilt beyond a reasonable doubt." Commonwealth v. Bush, 427 Mass. 26, 30 (1998). See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable").

Pursuant to G. L. c. 278, § 10, "night time" is defined as "the time between one hour after sunset on one day and one hour before sunrise on the next day."...