Commonwealth v. Nascimento
| Decision Date | 16 February 2022 |
| Docket Number | 21-P-320 |
| Citation | 100 Mass.App.Ct. 1124,182 N.E.3d 342 (Table) |
| Parties | COMMONWEALTH v. Etienne NASCIMENTO. |
| Court | Appeals Court of Massachusetts |
The defendant appeals from an order denying his second motion for a new trial on his convictions of rape of a child with force, G. L. c. 265, § 22A, and attempted murder, G. L. c. 265, § 16.2 The defendant argues that his trial counsel provided ineffective assistance by agreeing to a stipulation regarding deoxyribonucleic acid (DNA) test results and agreeing to the admission in evidence of a Sexual Assault Nurse Examiner (SANE) interview report containing the victim's statements. He also argues that certain testimony by the victim's mother was erroneously admitted. We affirm.
Background. The jury could have found that, in the early morning hours of February 14, 2002, the defendant knocked on the door of the fifteen year old victim's home and told her that he wanted to see her mother. When the victim replied that her mother was not home, he asked to use the telephone. He then entered the home, grabbed the victim by the neck, and dragged her into her bedroom. Once in the bedroom, the defendant choked the victim, ordered her to remove her shorts, and then raped her with his penis and his tongue. After the rape, the defendant allowed the victim to put her shorts back on, but then he grabbed her by the neck and choked her until she passed out. When the victim regained consciousness, she was on the bedroom floor and her mother was standing over her. The victim sustained bruising around her neck and underneath the eyes, subconjunctival hemorrhages
, and petechiae (small ruptured blood vessels ) all across her face.
The defendant did not testify at trial, but the Commonwealth introduced a statement he had made to the police in which he admitted having penile-vaginal intercourse with the victim and claimed it was consensual. His statement did not mention that he had also licked the victim's vagina.
Discussion. A motion for a new trial may be granted if it appears that justice may not have been done. Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). On appeal of a ruling on such a motion, we review for "a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Where, as here, the motion judge "did not preside at trial and did not conduct an evidentiary hearing," an appellate court is "in as good a position as the motion judge to assess the trial record and therefore review[s] the motion judge's decision de novo." Commonwealth v. Watkins (No. 1), 486 Mass. 801, 803-804 (2021).
1. Ineffective assistance of counsel. The defendant argues that his trial counsel provided ineffective assistance by agreeing to (1) what the defendant now claims is an inaccurate stipulation regarding DNA test results, and (2) the admission of a SANE interview report containing the victim's statements. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
a. DNA stipulation. The parties entered into a written stipulation, which was read to the jury, regarding the presence of DNA evidence. The stipulation provided, in part, that The defendant argues that trial counsel erred in agreeing to this stipulation, because it incorrectly suggested that his DNA was found in the saliva cells, when in fact it was only found in the sperm cells. The defendant argues that the stipulation thus unfairly enhanced the victim's credibility, because she testified that the defendant licked her vagina, whereas the defendant's statement to the police made no mention of having done so.
Even if counsel's performance was deficient, we are not persuaded that it deprived the defendant of any substantial ground of defense. Although the defense was consent, and so credibility was critical, the jury heard no evidence that the defendant denied licking the victim's vagina. Thus, his credibility was not damaged significantly, if at all, by the victim's testimony -- arguably supported by the DNA stipulation -- as to the licking.3 Nor did the flaw in the stipulation significantly enhance the victim's credibility. We agree with the motion judge that "[t]he evidence of the victim's physical injuries was far more significant on the issue of consent than the inaccuracy in the stipulation."4
b. SANE report. The defendant also contends that counsel was ineffective in agreeing to the admission of the SANE report, which contained the victim's statement that the defendant had licked her vagina. As with the DNA stipulation, the defendant argues that the report unfairly bolstered the victim's credibility and undermined his own. We reject the argument for the same reason as stated supra. The jury were unaware that the defendant denied the licking, i.e., unaware of any actual conflict between the defendant's and victim's accounts on this issue, so the admission of the victim's statement in the SANE report had little if any effect on her credibility or that of the defendant. Admission of the report did not deprive the defendant of any substantial ground of defense.
Moreover, counsel agreed to the admission of the SANE report, in the presence of the jury, as part of what counsel at sidebar termed a "package" that also included evidence the Commonwealth preferred to exclude.5 Also, counsel's agreement helped strengthen his closing argument to the jury, one theme of which was that the defendant was not hiding any information and thus should be believed on the one disputed issue, consent.6 Thus, agreeing to the admission of the SANE report appears to have been a tactical choice, one that was not manifestly unreasonable when made and thus did not constitute deficient performance. See Acevedo, 446 Mass. at 442.
2. Victim's mother's testimony. The defendant claims that the trial judge erred in allowing the victim's mother to testify that when she came home and found the victim on the floor, (1) she searched the apartment, with the victim watching, to allay the victim's fear that the assailant was still there; and (2) she noticed that the victim had urinated on herself. The defendant argues that this testimony exceeded the scope of that permitted under the "fresh complaint" doctrine applicable at the time of the defendant's 2003 trial.7 ,8
Fresh complaint testimony was admissible "to corroborate the victim's testimony ... as it relates to the credibility of the victim's testimony at trial." Commonwealth v. Licata, 412 Mass. 654, 660 (1992). Fresh complaint testimony was limited to "the fact of the complaint and [its] details ... as expressed by the complainant," Commonwealth v. Peters, 429 Mass. 22, 27 (1999), meaning "that the witness may testify to the complainant's statements of the facts of the assault," Commonwealth v. Quincy Q., 434 Mass. 859, 874 (2001). "[F]resh complaint evidence [could not] be used as hearsay to fill gaps in the prosecution's case." Commonwealth v. Scanlon,...
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