Commonwealth v. LeFave

• Decision Date: 19 August 1999
• Citation: 714 NE 2d 805,430 Mass. 169
• Parties: COMMONWEALTH v. CHERYL AMIRAULT LEFAVE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 169

714 NE 2d 805

COMMONWEALTH v. CHERYL AMIRAULT LEFAVE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1999.

August 18, 1999.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, MARSHALL, & IRELAND, JJ.

Catherine E. Sullivan, Special Assistant District Attorney (Lynn C. Rooney, David W. Cunis, Abra C. Siegel, & Amy E. Bannes, Assistant District Attorneys, with her) for the Commonwealth.

Daniel R. Williams, of New York, & James L. Sultan (Catherine J. Hinton with them) for the defendant.

The following submitted briefs for amici curiae:

Kevin S. Nixon for Scientists for the Accurate Communication of Data.

Wendy J. Murphy for Leadership Council on Mental Health, Justice, and the Media. Sherry A. Quirk for One Voice/The American Coalition for Abuse Awareness.

WILKINS, C.J.

We deal once again with consequences of the multiple convictions of Cheryl Amirault LeFave of rape of a child under sixteen years and indecent assault and battery on a child under fourteen years.¹ In Commonwealth v. LeFave, 407 Mass. 927 (1990), we affirmed those convictions, and in Commonwealth v. Amirault, 415 Mass. 112 (1993), we vacated the trial judge's order revising the sentences that he had imposed.

In 1995, a judge, not the trial judge (who had retired), allowed the defendant's first motion for a new trial. See Mass. R. Crim. P. 30, 378 Mass. 900 (1979). That motion alleged that she had been deprived of her right to "face-to-face" confrontations with the child witnesses against her, guaranteed by art. 12 of the Massachusetts Declaration of Rights. In Commonwealth v. Amirault, 424 Mass. 618 (1997), we agreed that the seating arrangement for the child witnesses violated the defendant's confrontation rights under art. 12. Id. at 632. We nevertheless vacated the order allowing the defendant's motion for a new trial and reinstated her original convictions. Id. at 653. We concluded that the defendant had waived the confrontation issue by not raising it earlier. Id. at 642-644. The art. 12 confrontation issue was clearly identified by the time the defendant's appeal from her convictions was heard, but it was not argued, and thus it was waived. Id. at 643-644. Indeed, before trial, a judge twice adverted to the possibility of a violation of the right to a face-to-face confrontation in the arrangement proposed for the seating of child witnesses, but in challenging the arrangement defense counsel disavowed reliance on a right to confrontation. Id. at 623, 642 n.17.

The case is again before us, this time on our allowance of the Commonwealth's application for direct appellate review, because a judge in the Superior Court, in two separate rulings on independent grounds, has allowed the defendant's second and third motions for a new trial. The second motion for a new trial revisits the confrontation issue, asserting that counsel was ineffective in not raising the confrontation issue on direct appeal. The third motion for a new trial is based on a claim that newly discovered "scientific evidence" demonstrates that "due to the manner in which the allegations of child sexual abuse were investigated," evidence presented against the defendant was "wholly unreliable." We shall discuss in turn each order allowing the defendant a new trial and shall vacate both orders.²

THE SECOND MOTION FOR A NEW TRIAL

The defendant's second motion for a new trial is based on the same alleged trial error on which her first motion was based: a claimed violation of her art. 12 right of confrontation. In the second motion, however, she raises the issue vicariously as a claim that she is entitled to a new trial because her counsel in her appeal from her convictions was ineffective, in a constitutional sense, in not arguing the confrontation issue. A major weakness in the defendant's contention is that the ineffectiveness of the defendant's appellate counsel, who were also her trial counsel, could have been presented in her first motion for a new trial.³ Her counsel on that first new trial motion were well aware of the ineffectiveness of counsel argument and indeed alluded in her brief to this court that her original defense counsel may have been ineffective. See Commonwealth v. Amirault, 424 Mass. at 645. On the record then before us, we commented on but did not rule on the possible ineffectiveness of original defense counsel at the trial.⁴ We did not discuss the possible ineffectiveness of appellate counsel, but it is clear that the defendant had the opportunity to argue the issue as part of her first motion for a new trial.

The defendant waived the claim of appellate ineffective assistance of counsel because she had a fair opportunity to raise the denial of her confrontation right and "may not belatedly invoke that right to reopen a proceeding that has already run its course." Id. at 639. "[T]he concern for finality demands that a defendant present every claim and argument he might fairly have had available to him the first time around." Id. Just as the defendant waived her right to challenge the denial of her art. 12 right to confront child witnesses face to face by not arguing the issue on appeal from her convictions, she waived her right to challenge the ineffectiveness of her counsel on appeal by not pressing the point in presenting her first motion for a new trial. See id. at 644.

The motion judge gave inadequate consideration to the question whether the defendant had waived the ineffective assistance of counsel claim by failing to argue the confrontation issue in connection with her first motion for a new trial. He stated that "the ineffective assistance of counsel argument was not presented as part of the first new trial motion." That is, as we have pointed out, not the test for determining waiver. The ineffective assistance issue was available when the first motion for a new trial was presented. The issue was certainly open to be argued, and the motion judge's conclusion that it was not "ripe" for determination is meritless. As noted already, the defendant identified the issue in her brief prior to our 1997 Amirault opinion.

The judge was not entitled, under Mass. R. Crim. P. 30 (b) or otherwise, to grant a new trial without considering and deciding the consequences of the fact that the defendant had waived the ineffective assistance issue. Commonwealth v. Amirault, 424 Mass. at 640. The power to give relief when a waived issue is "raised for the first time by a [postconviction] motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Curtis, 417 Mass. 619, 626 (1994), quoting Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). See Commonwealth v. Watson, 409 Mass. 110, 112 (1991); Commonwealth v. Deeran, 397 Mass. 136, 139 (1986); K.B. Smith, Criminal Practice and Procedure §§ 2070, 2084 (Supp. 1999) ("the rule of waiver applies equally to constitutional claims which could have been raised, but were not raised on direct appeal or in a prior motion for a new trial").

The only basis on which the motion judge could properly have dealt with the waived ineffective assistance of counsel issue was on the standard of a substantial risk of a miscarriage of justice. See Commonwealth v. Amirault, 424 Mass. at 646; Commonwealth v. Curtis, supra at 626. We considered the waived confrontation issue in the appeal from the allowance of the first motion for a new trial and concluded that the defendant had not met her burden of showing that there was a substantial risk of a miscarriage of justice in the circumstances of the child witnesses' testimony. Commonwealth v. Amirault, 424 Mass. at 653. The fact that the defendant has grounded her substantial risk of a miscarriage of justice claim on the ineffectiveness of appellate counsel in failing to argue the confrontation issue in the direct appeal from her convictions adds nothing to her position.⁵

The results of the court's recent efforts to define a substantial risk of a miscarriage of justice do not alter the conclusion expressed in Commonwealth v. Amirault, supra at 645-651, that the defendant did not meet her burden of showing that there was a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, ante 8, 13 (1999). This court's traditional treatment of the substantial risk issue calls for us to decide if we have a serious doubt whether the result of the trial might have been different had the error not been made. Id. (no substantial risk of miscarriage of justice if court persuaded that error did not materially influence guilty verdict).⁶ That standard was the principal consideration in Justice Cutter's seminal opinion advancing the test of a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We applied the standard in Commonwealth v. Amirault, 424 Mass. at 647, where we said that there would be a substantial risk of a miscarriage of justice if we were left "with a serious doubt that the defendants' guilt had been fairly adjudicated."

We repeat what we said in Commonwealth v. Amirault, 424 Mass. at 653: "[A]ll of the child witnesses in the two trials testified in the physical presence of the defendants, testified under oath, were subject to cross-examination, and sat in front of the jury who could observe their demeanor and assess the weight and credibility of their testimonies. Moreover, there were several actual face-to-face encounters with the child witnesses throughout the trial.... We conclude that in these circumstances, the defendants have not met their burden of showing there was a substantial risk of a miscarriage of justice." (Citation omitted.) We are additionally warranted in our conclusion that the seating arrangement for the child witnesses was not particularly significant by the decision of experienced defense counsel not to challenge that arrangement on art. 12...