Commonwealth v. Homen
Decision Date | 25 November 2019 |
Docket Number | 18-P-1152 |
Citation | 138 N.E.3d 1053 (Table),96 Mass.App.Ct. 1110 |
Parties | COMMONWEALTH v. David HOMEN. |
Court | Appeals Court of Massachusetts |
A jury convicted the defendant, David Homen, on two indictments charging rape of a child under the age of sixteen by force and two indictments charging indecent assault and battery on a child under fourteen. The defendant subsequently filed a motion for a new trial in which he alleged ineffective assistance of trial counsel. In this consolidated appeal from the judgments and from the denial of his new trial motion, the defendant presses only his ineffective assistance claim. We affirm.
Discussion. We review the denial of the defendant's new trial motion for "a significant error of law or other abuse of discretion." Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "A judge's findings of fact after an evidentiary hearing on a motion for a new trial will be accepted if supported by the record." Commonwealth v. Walker, 443 Mass. 213, 224 (2005). We extend "special deference" to the motion judge's ultimate decision on an ineffective assistance of counsel claim where, as here, she was also the trial judge. See Commonwealth v. Lane, 462 Mass. 591, 597 (2012).
1. Failure to argue for suppression under New Hampshire law. The defendant contends that trial counsel was ineffective because he argued the motion to suppress the defendant's statements made to Pelham, New Hampshire, police officers under Federal and Massachusetts law instead of New Hampshire law. To prevail on a claim of ineffective assistance of counsel, the defendant must show that "(1) the conduct of his counsel fell ‘measurably below that which might be expected from an ordinary fallible lawyer’ [performance prong], and (2) this conduct ‘likely deprived the defendant of an otherwise available, substantial ground of defence’ [prejudice prong]." Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). For claims based on failing to raise an argument in a motion to suppress, the defendant must first demonstrate a likelihood that the motion would have been successful. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004). If the motion would have been successful, we then consider whether "we have a serious doubt whether the jury verdict would have been the same." Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
The question whether New Hampshire or Massachusetts law applied to the defendant's motion to suppress is not straightforward. For example, considering whether Massachusetts law, which was more favorable to the defendant, would apply to a motion to suppress based on the deprivation of a postarrest telephone call by South Carolina police, the court stated broadly, "The legality of the procedures employed by the police forces of other States operating in their own jurisdiction is governed by the law of that jurisdiction." Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). See Commonwealth v. Williams, 475 Mass. 705, 717 (2016) ( ). Yet in seeming contradiction, in a case concerning whether evidence seized pursuant to a warrant in another State was admissible, the court stated that Massachusetts law concerning conflict of law issues in this area "is by no means clear or settled." Commonwealth v. Banville, 457 Mass. 530, 536 n.1 (2010). In dicta, the court discussed four methods other States employ to resolve conflict of law issues, but ultimately did not decide which one applied. Id. at 536-538 & n.1.2
In this case, it is by no means certain that New Hampshire law would apply, or that the defendant would prevail on the performance prong based on counsel's failure to argue New Hampshire law. For the purposes of this appeal, however, we will assume without deciding that New Hampshire law would apply, that a motion to suppress made under New Hampshire law would have been successful, and that an ordinary, fallible lawyer would not have failed to argue New Hampshire law. Nonetheless, we conclude that the defendant failed to establish that he suffered prejudice from counsel's error. See Strickland v. Washington, 466 U.S. 668, 697 (1984) ().
The audio recordings of the defendant's statements to the New Hampshire police officers did not provide direct evidence of his guilt. One of the statements introduced at trial included the defendant's admission that he had a drinking problem. These statements merely corroborated the victim's testimony that the defendant frequently smelled like alcohol, including when he sexually assaulted her in her bedroom. In addition, the jury heard that when the police asked the defendant about an incident when he might have gotten into bed with the victim, he volunteered that he knew what they were talking about: an incident when he came into the house drunk and woke the victim sleeping on the couch because he mistook her for her mother. This evidence corroborated the victim's testimony that she had been sleeping on the couch when one of the sexual assaults occurred. The prosecutor also made use of this evidence during closing argument. While the defendant denied at trial that the victim and her mother ever confronted him about the couch incident, the prosecutor suggested it was indicative of the defendant's guilt that he gave the same "quick response" to the police that the victim testified he had made to her and her mother.
The judge concluded, and we do not disagree, that even if the audio recordings had been suppressed, the Commonwealth likely would have been able to use them for impeachment purposes. See Commonwealth v. Mulgrave, 472 Mass. 170, 181-182 (2015) ; Mass. G. Evid. § 511(d) (2019). The judge rejected the defendant's claim that he would not have testified if the statements had been suppressed, and we have no basis to disturb this conclusion. After an evidentiary hearing at which trial counsel testified, the judge found that the defendant would have taken the stand regardless of the outcome of the motion because he wanted to assert his innocence and deny the allegations against him. The record supports this finding.
At trial, the defendant contended that he drank only occasionally when he lived with the victim and her mother. The Commonwealth could have used the defendant's statements, albeit only to impeach him, on this point. The defendant also testified that he once woke the victim on the couch, mistaking her for her mother. Although the Commonwealth may not have been able to use the audio recording on this point, the defendant's in-court admission had the same corroborative effect...
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