Commonwealth v. Mackie
| Decision Date | 30 November 2021 |
| Docket Number | 20-P-1307 |
| Citation | 178 N.E.3d 915 (Table) |
| Parties | COMMONWEALTH v. George K. MACKIE. |
| Court | Appeals Court of Massachusetts |
On August 12, 2009, following a jury trial in the Superior Court, the defendant, George K. Mackie, was convicted of two counts of rape of a child.2 He appealed the convictions, contending that he received ineffective assistance of counsel, the prosecutor made several errors in closing argument, and the judge admitted inappropriate first complaint testimony. On March 7, 2014, a panel of this court affirmed the defendant's convictions in an unpublished decision issued pursuant to Rule 1:28. See Commonwealth v. Mackie, 85 Mass. App. Ct. 1104 (2014). On April 2, 2020, the defendant filed a motion for a new trial in the Superior Court, which a Superior Court judge denied in a written memorandum. The defendant now appeals from the order denying his motion for a new trial arguing the following: (1) trial and appellate counsel rendered ineffective assistance by failing to object to or raise issues regarding the prosecutor's closing argument; (2) trial and appellate counsel rendered ineffective assistance by failing to object to or raise issues regarding the judge's jury instructions; (3) trial and appellate counsel rendered ineffective assistance with respect to violations of the first complaint rule; and (4) trial counsel rendered ineffective assistance by failing to introduce telephone records to impeach the victim's credibility.3 We affirm.
Background. The forty-six year old defendant developed a friendship with the thirteen year old victim and the victim's friend. Among other activities, the defendant took the boys fishing, to restaurants, to a bike store, and to a "monster jam" truck event. He also gave the victim an iPod and a cell phone but told the victim that he "could only use it to call [the defendant]." On one of the outings, the defendant drove the victim to a boat ramp by "the lake in Clinton." "[I]t was dark out at this time." There, the defendant unzipped the victim's pants, pulled out the victim's penis, and placed it into his mouth. A few days later, the defendant drove the victim to the same area and placed the victim's penis into his mouth a second time. After each incident, the defendant told the victim, "what happens in the car stays in the car." The defendant admitted at trial that he took the victim to restaurants and bought him various things. He also admitted that he took the victim to the boat ramp on at least two occasions but testified that he did so to go fishing. He denied any sexual contact with the victim.
Discussion. 1. Legal standards. The defendant claims that the judge abused her discretion in denying the motion for a new trial because both trial and prior appellate counsel rendered ineffective assistance. A court should only grant a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), where it "appears that justice may not have been done." Mass. R. Crim. P. 30 (b). Accord Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635 (2001). Motions for a new trial are committed to the sound discretion of the judge, see Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are granted only in extraordinary circumstances," Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing.’ " Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).
Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden to establish that "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 that, as a result, the defendant was "likely deprived ... of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (). Where, as here, the motion judge was not the trial judge, we independently assess the trial record, but we defer to the motion judge's credibility determinations. See Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 166 (2007). See also Commonwealth v. Wright, 469 Mass. 447, 461 (2014).
2. Ineffective assistance regarding Commonwealth's closing. The defendant contends that trial counsel was ineffective for failing to object to what he claims were multiple errors in the prosecutor's closing argument, and that prior appellate counsel was ineffective for failing to argue in the first appeal that the prosecutor improperly vouched for witnesses and argued facts not in evidence. As the defendant did not object at trial, our review is limited "to determine if the statements were error, and, if so, whether they created a substantial risk of a miscarriage of justice." Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9 (2019).
In closing argument, counsel "may argue from the evidence and may argue fair inferences that might be drawn from the evidence" (citation omitted). Commonwealth v. Ridge, 455 Mass. 307, 330 (2009). We consider the challenged comments in light of the entire argument, the judge's instructions, and the evidence at trial. See Commonwealth v. Pearce, 427 Mass. 642, 643-644 (1998). "Counsel also may call on the experience and common knowledge of the jury." Ridge, supra. With these principles in mind, we turn to the conduct at issue in the present case.
a. Analogy to "typical" case. First, the defendant contends that the prosecutor erred in stating that the rapes occurred "in the woods," and in describing the typical child rape case and attempting to fit the facts of the present case into such "typical" cases. Specifically, he claims error in the prosecutor's statements to the effect that such cases do not occur in public or on camera, but occur "in the woods, alone in a car, with a man and a boy or a man and a girl, while nobody is around."
The prosecutor's statements regarding the "typical case" were not appropriate because at trial there was no expert testimony or other evidence explaining what evidence or facts would or may exist in a "typical" child rape or child sexual assault case. Despite this error, the challenged statements, viewed in context of the entire closing argument and the evidence adduced at trial, were not of the scope or tenor that created a substantial risk of a miscarriage of justice. See Ridge, 455 Mass. at 331 (). The comments were made in response to defense counsel's closing argument to the effect that the victim's claims lacked corroboration and credibility. See Commonwealth v. Mason, 485 Mass. 520, 539 (2020) (). There was no dispute that the defendant and the victim were alone together at the time of the incidents; that their time together by the boat ramp was not caught on camera; that the victim did not immediately disclose the incidents; and that there was no DNA or other scientific or medical evidence introduced at trial. In response to defense counsel's argument, the prosecutor permissibly highlighted evidence regarding the private nature and circumstance of the incident and appealed to the jury's common knowledge that it is not uncommon for such a crime to occur away from the public eye. See Commonwealth v. Kozec, 399 Mass. 514, 521 (1987) ().
As to the prosecutor's references to "the woods,"4 even assuming that they constituted error, they, too, did not create a substantial risk of a miscarriage of justice.5 We attribute a certain measure of sophistication to a jury. "The jury are presumed to understand that a prosecutor is an advocate, and statements that are ‘[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole’ will not require reversal" (citation omitted). Commonwealth v. Martinez, 476 Mass. 186, 199 (2017). See Kozec, 399 Mass. at 517. Moreover, as discussed below, the judge's repeated instructions further negated any risk of a miscarriage of justice.
b. Prosecutor's reference to experience with his own son. The defendant next challenges the prosecutor's statement to the effect that he had a thirteen year old son, and he knew that "they all tell stories." The defendant suggests that the statement constituted comments on facts not in evidence and vouching for witness credibility.6 Viewed in isolation, the prosecutor's statement may appear troubling. Viewed in context, however, the statement is not. In defense counsel's closing argument, he repeatedly referenced a friend's son, "Dean," to illustrate, by analogy, why the victim was lying. He described how Dean is a "nice kid," but "[e]very now and then ... he'll say something that we both know is just totally a lie." He then described how Dean told a "fish story," for no apparent reason, "but we know kids do things."
In response, the prosecutor addressed this portion of defense counsel's argument, stated that he, too, had a thirteen year old son, and agreed with defense counsel's argument that "they all tell stories." The prosecutor then contrasted the distinction between kids...
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