Commonwealth v. Gardner
| Docket Number | 21-P-1007 |
| Decision Date | 15 February 2023 |
| Parties | COMMONWEALTH v. Robert GARDNER. |
| Court | Appeals Court of Massachusetts |
Dennis Shedd, Lexington, for the defendant.
Ryan J. Rall, Assistant District Attorney, for the Commonwealth.
Present: Shin, Hand, & Brennan, JJ.
A Superior Court jury convicted the defendant, Robert Gardner, of aggravated rape, assault and battery causing serious bodily injury, assault and battery by means of a dangerous weapon causing serious bodily injury (two counts), assault and battery on a family or household member (two counts), stalking, violation of a restraining order, and intimidation of a witness.1 The offenses were committed against his former wife, spanned over half a decade, and resulted in significant physical injuries to the victim at various times, including a fractured back, a broken nose
, and a fractured skull. This physical violence was underpinned by emotional manipulation of the victim, and frequently manifested in the defendant's pressure on her to recant her allegations and assert her marital privilege not to testify against him.
We consider the defendant's appeals from his convictions, the order denying his postconviction motion for discovery and funds, and the order denying in part his motion for a new trial based on his claims of ineffective assistance of trial counsel.2 Concluding that (1) there was sufficient evidence of witness intimidation to support the defendant's conviction, (2) there was no error in the admission at trial of a recorded telephone conversation between the defendant and his father, (3) the denial of the defendant's postconviction request for discovery and funds was not an abuse of the judge's discretion, and (4) trial counsel was not ineffective, we affirm.
1. Background. The defendant and the victim began dating in 2004, married in 2009, and ultimately divorced in 2017. Less than one year into their relationship the defendant became physically and sexually abusive toward the victim. Thereafter, the defendant frequently was violent toward her, although the victim rarely reported his abuse.
The first reported incident of abuse occurred on August 7, 2008. According to the victim, after she refused the defendant's demand for sex, he held her cat against the wall by its throat, hit the victim, and raped her.3 The victim reported to police what the defendant had done to her cat but was "too scared" to disclose the sexual assault. The defendant soon convinced the victim that the incident was her fault, and she wrote a letter to him apologizing "for the court case[ ] that I have you involved in." The victim later provided an affidavit to the prosecutor, written by the defendant, then copied and signed by the victim, requesting that the charges be dismissed.
The next reported assault took place on February 20, 2011. After a night of arguing, the defendant and the victim began to have consensual sex. When the victim tried to stop the sexual interaction, the defendant pushed her down and hit her repeatedly. Although she called the police, the victim initially reported only the physical abuse, because she was "[still] too scared" to report the sexual assault. As a result of this attack, she suffered swelling and bruising on her head, pain in her ribs, vaginal bleeding, and a broken vertebra.
The victim obtained a restraining order against the defendant in conjunction with this assault. Shortly after the order issued, the defendant violated it. The victim reported the restraining order violation to police and the defendant was charged in the District Court. Subsequently, the victim submitted an affidavit to the District Court, drafted by the defendant's attorney, asking that the criminal cases against the defendant be dismissed.
On October 2, 2014, an argument between the victim and defendant escalated into a physical assault in which the defendant broke the victim's nose. The victim called police and the defendant was arrested. Over the next several months, the defendant repeatedly tried to convince the victim to retract those allegations of domestic violence. He was angry with the victim and told her the incident was not his fault, but instead was a result of her mental illness. One such conversation in March 2015 erupted into another violent incident that resulted in the defendant's arrest.4 While held in custody on that matter, the defendant told the victim to get him out of jail, directed her to call his attorney, and instructed her to obtain letters from her psychiatrist to support her recantation of the allegations against him. Ultimately, the victim provided the District Court with a letter from her psychiatrist and indicated that she did not want to cooperate with prosecution. The charges in the District Court were dismissed at the victim's request.
On June 3, 2015, after the victim refused the defendant's demand for sex, the defendant threw an object at the victim, striking her in the head and fracturing her skull. After calling 911, the victim passed out in the street. The victim went by ambulance to the hospital, where she underwent a craniotomy
to remove a blood clot and relieve pressure on her brain.
After her release from the hospital, the victim lived in New Hampshire. On July 24, 2015, she rented a motel room in Tewksbury and agreed to see the defendant. The victim initially consented to have sex with the defendant, but when she told him to stop, they argued. The defendant disabled the telephone in the motel room (motel phone) so that the victim could not call for help. Over the next few hours, the defendant repeatedly raped the victim vaginally and forced his penis into her mouth. When the victim yelled at him to stop, the defendant put his hand over her mouth to keep her quiet, which caused the victim to struggle to breathe. When the victim tried to leave, the defendant stood in front of the door and locked it. At some point, the victim got her cell phone and dialed 911. She turned on the cell phone speaker and the defendant made several whispered threats, including that he was going to kill her and her daughter. The defendant fled before police arrived.
When police arrived, the victim was crying and shaking. She had bruising and swelling on her face, her mouth was bleeding, and the room was in disarray with the motel phone ripped off the wall. Although initially reluctant to seek treatment, the victim went to the hospital later that day. A sexual assault nurse examiner (SANE) documented numerous injuries and bruising all over the victim's body.
Shortly after her release from the hospital, the victim spoke to the defendant. The police had not yet arrested the defendant and, despite the most recent attack, the victim did not want them to do so because she still loved him. The defendant told the victim that to avoid his prosecution they should run away and stay elsewhere for several years. The defendant and victim left Massachusetts together the following day, but a police task force eventually located them in New Jersey. Immediately after his arrest, the defendant began to exhort the victim from the holding cell to support him: "We're strong, we know how to do this ... we just got to do what we have to do to be strong."
The defendant was returned to Massachusetts and subsequently charged in Superior Court in indictments that encompassed the victim's allegations of abuse from 2011 through 2015. While in custody awaiting trial, he sent letters to the victim. As a result of his sending those letters, the defendant was charged in a separate indictment with intimidation of a witness. All the indictments were joined for trial.
2. Discussion. a. Direct appeal. i. Sufficiency of evidence of intimidation of a witness. The defendant was convicted of one count of intimidation of a witness. His first challenge on appeal is to the judge's denial of his motion for a required finding of not guilty as to that indictment. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547, 69 N.E.3d 993 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303, 58 N.E.3d 1070 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762, cert. denied, 573 U.S. 937, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014).
The elements required to prove intimidation of a witness are that the defendant (1) willfully; (2) threatened, intimidated, or harassed; (3) a witness "in a criminal proceeding of any type; (4) with the intent to impede or interfere with a criminal investigation or proceeding." Commonwealth v. Nordstrom, 100 Mass. App. Ct. 493, 499-500, 179 N.E.3d 593 (2021). See G. L. c. 268, § 13B. The defendant argues that there was insufficient evidence that the defendant threatened, intimidated, or harassed the victim. Although we agree that the defendant did not explicitly threaten the victim, we conclude that there was sufficient evidence to support a conviction of witness intimidation either by intimidation or by harassment.
As relevant here, "intimidation" means "acts or words that would instill fear in a reasonable person." Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535, 923 N.E.2d 1086 (2010). See Commonwealth v. Perez, 460 Mass. 683, 703, 954 N.E.2d 1 (2011). The Commonwealth's evidence demonstrated that the parties’ lengthy relationship was punctuated by cycles of the defendant abusing, supporting, blaming, "gaslighting,"5 and pressuring the victim to recant her allegations against him. See Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613, 870 N.E.2d 645 (2007) (...
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