Commonwealth v. Croken, 95950
| Decision Date | 06 November 2000 |
| Docket Number | 95950 |
| Citation | 2000 MBAR 470 |
| Parties | Commonwealth v. Richard Croken |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Chin, J.
On July 11, 1996, the defendant Richard Croken was tried on two counts of forcible rape of a child under sixteen years of age in violation of G.L.c. 265, §22A and three counts of indecent assault and battery of a child under fourteen years of age in violation of G.L.c. 265, §13B. On July 18, 1996, a jury found Croken guilty on all of the indictments. Two of the indecent assault and battery indictments were dismissed as duplicative, and Croken was sentenced to imprisonment at MCI Cedar Junction for a term of 15-20 years with a suspended sentence of 6-9 years from and after, with a period of five years of probation. Croken now moves for a new trial pursuant to Mass.R.Cr.P. 30(b) on the ground that he received ineffective assistance of counsel. For the reasons discussed below, the defendant's motion is DENIED.
The defendant, Richard Croken, was charged with two counts of rape of a child under sixteen years of age and two counts of indecent assault and battery on a child under fourteen years of age with respect to his nephew, Chris.1 In addition, the defendant was charged with one count of indecent assault and battery on a child under fourteen years of age with respect to another nephew, Steve.2 The defendant, who was represented at trial by Attorney Robert LaLiberte, was tried before a jury from July 11 to July 18, 1996 on all five indictments.
In his opening argument, defense counsel emphasized the Commonwealth's burden of proof and the alleged victims' lack of credibility and delay in reporting the incidents of sexual abuse.
The first witness was Chris, the defendant's nephew and the alleged victim with respect to four of the indictments. Chris testified that he grew up in Plymouth living with his mother and brother, and that his Aunt Judy, his mother's sister and his uncle, the defendant, lived about ten miles away in Plymouth. Chris explained that his father was not involved in his upbringing and that the defendant was like a father to him. He stated that he and his brother spent a lot of time at the Croken house on weekends, holidays and vacations, as well as sometimes during the school week, and that the defendant took care of them while his mother and aunt worked.
Chris testified that in 1983, when he was eight years old, he spent the entire week of February vacation with the Crokens sleeping on the living room couch. He awoke in the middle of the night to find the defendant's mouth on his penis. The television was on and a pornographic movie was playing. Chris struck the defendant, ran into the bathroom, locked the door and hid between the toilet and the tub. The defendant came to the bathroom door, told Chris to come out, stated that everything would be all right, and warned him not to tell anyone what had happened.
Chris remained in the bathroom for fifteen minutes until the defendant had gone into his bedroom and shut the door. Chris then went back to sleep on the couch. When Chris woke up the next morning, the defendant had already left the house to take his wife to work. Upon his return, the defendant warned Chris that if he told anyone about the incident, he would get hurt or disappear and his mother wouldn't be able to find him. Chris testified that he never told anyone because he wasn't sure what had happened and because he was afraid.
Chris stated that on numerous occasions between 1983 and 1986, while his mother was working weekends as a waitress in a nightclub, the defendant sexually abused him. Chris testified that the defendant fondled his penis, performed fellatio on him, and inserted his fingers in Chris's anus. Chris also testified that in 1986 or 1987, his family moved into the Croken home for several months because they could no longer afford rent. His mother was working three jobs at that time, and they stayed in the Crokens' living room. One night, Chris awoke to find the defendant's mouth on his penis. The defendant then penetrated Chris's anus with his penis. Chris testified that as he got older, he tried to avoid going to the defendant's house and had arguments with his mother over his unwillingness to go there. Finally, Chris testified that he never disclosed the abuse until 1993, after hearing a discussion about sexual abuse and rape in his health class at school and after learning that his cousin Steve had reported an incident of abuse by the defendant to the Plymouth police. Two days after Steve spoke to the police, Chris went to the Plymouth police station and reported the defendant's abuse of him.
On cross-examination, Chris testified that during the period from 1983 to 1986 when the abuse occurred, his brother Derek was also present at the Croken house, usually sleeping in one of their cousin's rooms. He stated that during the four month period when he, his mother and Derek lived with the Crokens, he slept on the living room couch and his mother slept on a mat on the living room floor. Chris denied that he had told Plymouth Police Detective Dennis Govoni that he struck the defendant every time an incident of abuse occurred. On re-direct, Chris testified that he told Govoni that the defendant had molested him over fifty times.
The next witness was Chris's mother, who testified that both her sons frequently went to the Croken house. She testified that when she worked until 2: 30 a.m. as a cocktail waitress, the boys would sleep at the Crokens with the defendant watching them. She stated that when Chris entered his early teens he no longer wanted to go to the defendant's house and would argue with her about it. Chris's mother further testified that in 1993, her sister, Steve's mother, called her and relayed some information following which, she and Chris went to the Plymouth Police Station. Finally, she testified that Chris never told her exactly what the defendant did to him. On cross-examination, Chris's mother stated that while they lived with the Crokens, she used to sleep on the couch in the living room, while the boys would sleep on the floor on an air mattress. She stated that when she got home from work at 2: 30 in the morning, the boys would be sleeping and sometimes the defendant would be up watching television in the living room.
Following this testimony, Steve's mother testified that Steve suffered from Attention Deficit Disorder and dyslexia, had multiple learning disabilities, and attended special needs classes from first through twelfth grade. She testified that these disabilities did not affect Steve's ability to recall specific events, although he often became confused about dates and times. Steve's mother testified that she and her children often visited the Crokens, and in 1993, when her husband was stationed with the Navy at the Quincy Shipyard, she and the children would stay overnight at the Crokens, with either the defendant or his wife watching the children if she went out. When Steve was younger, he would sleep in the living room or in his cousin's bedroom, but when he reached his early teens, he slept in the bedroom with his mother. He began to become very upset when he had to stay at the Crokens and refused to remain there without his mother, even for short periods of time. Steve's mother further testified that in April of 1993, she received a call from Antoinette Link, the special needs dean at Steve's school. Link informed her that Steve was in trouble at school and gave her information that led her to speak to Steve, after which she took Steve to the Plymouth Police Station.
On cross-examination, Steve's mother admitted that during his early teens, Steve would walk by himself to a video store where the defendant was employed and would stay there for periods of time. She denied that she instructed Steve to sleep in her bedroom when they stayed at the Crokens, stating that Steve asked to do so. On redirect, she testified that there were occasions when Steve would fall asleep on the couch in the living room and then would come into the bedroom with her in the middle of the night. She also testified that Steve was eighteen years old and approximately six feet tall when he would go to the video store at which the defendant worked.
The next witness was Steve, who testified that when he was younger, he and his family would often visit the Crokens. He testified that on one occasion during the summer, he could not remember what year, he was alone with the defendant in the afternoon when his mother, sister, aunt and cousins went to the store. He was sitting next to the defendant, watching television, when the defendant reached into Steve's pants and fondled his penis. At some point, Steve got up and went to the bathroom. When he came back, the defendant continued to fondle him. Steve never told anyone about this incident because the defendant stated that he would hurt him if he said anything. Steve testified that thereafter, instead of staying alone at the Croken house, he would stay with a friend across the street. When he had to stay at the defendant's house, he would sleep in the bedroom with his mother because he was afraid to sleep in the living room. Steve testified that when he was older, he would go to the video store near his house where the defendant worked because although he was still a little afraid of the defendant, the store was a public place with other people around and the defendant would let him take the videos home for free. Finally, Steve stated that in 1993, he told his teacher, Miss Mitchell, what...
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