Commonwealth v. Dao

• Decision Date: 17 August 2021
• Docket Number: 20-P-995
• Citation: 100 Mass.App.Ct. 1105,173 N.E.3d 57 (Table)
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Tuan DAO.

100 Mass.App.Ct. 1105

173 N.E.3d 57 (Table)

COMMONWEALTH

v.Tuan DAO.

20-P-995

Appeals Court of Massachusetts.

Entered: August 17, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of assault and battery, assault by means of a dangerous weapon, aggravated rape, kidnapping,² and unlawful possession of a firearm.³ On appeal, the defendant contends that the motion judge, who was also the trial judge, erred in not allowing his motion for new trial because he received ineffective assistance of counsel, and that his motion for a required finding of not guilty with respect to the kidnapping charge should have been allowed. We affirm.

Motion for new trial. "We review the denial of a motion for a new trial for an abuse of discretion." Commonwealth v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 291, 316 (2014). When analyzing a defendant's claim for ineffective assistance of counsel, we determine "whether 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 so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Sorenson, supra, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). However, "[a] strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was manifestly unreasonable when made" (quotation and citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).

Defense counsel's decision to introduce evidence of prior encounters between the defendant and the victim was a deliberate trial strategy designed to suggest to the jury that the defendant and victim were engaged in a consensual sexual relationship.⁴ That this strategy was reasonable is highlighted by the fact that defense counsel was able to elicit testimony that tended to weigh against the suggestion that the prior encounters were nonconsensual and thereby enabled defense counsel to impeach the victim's testimony regarding the encounter on the evening in question. For example, while cross-examining the victim, defense counsel elicited testimony that the victim continued to socialize with the defendant after the claimed assaults, even allowing the defendant to stay at her home on multiple occasions. Furthermore, defense counsel questioned the victim on her failure to report one of the alleged assaults until after home surveillance video footage that would have captured it was no longer available. Considering the otherwise overwhelming evidence against the defendant, corroborated in many respects by multiple witnesses, defense counsel pursued one of the only strategies available to the defendant.⁵ The judge did not abuse her discretion in determining that this strategy was not manifestly unreasonable and the defendant has failed to demonstrate that "better work might have accomplished something material for the defense." Acevedo, 446 Mass. at 442, quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1997).

Motion for a required finding of not guilty. Viewed in the light most favorable to the Commonwealth, there was sufficient evidence to support the defendant's conviction of kidnapping. See Commonwealth v. Townsend, 453 Mass. 413, 427 (2009), quoting Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) ("In reviewing the denial of a motion for a required finding, we must determine ‘whether the evidence, in its light most favorable to the Commonwealth ... is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged [beyond a reasonable doubt]’ "). A person is guilty of kidnapping if they, "without lawful authority, forcibly or secretly confine[ ] or imprison[ ] another person ... against [that person's] will." G. L. c. 265, § 26. "Forcible conduct includes acts of actual physical force or the display of potential force," Commonwealth v....