Commonwealth v. Rauscher
| Decision Date | 18 May 2023 |
| Docket Number | 21-P-450 |
| Parties | COMMONWEALTH v. BRYAN RAUSCHER. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Superior Court, the defendant was found guilty of strangulation or suffocation and two counts of assault and battery on a household member.[1] On appeal, in his Moffett brief, see Commonwealth v. Moffett 383 Mass. 201, 208-209 (1981), the defendant argues that he did not freely and voluntarily waive his right to a jury trial and to testify, trial counsel was ineffective, and the victim's testimony was not credible. We affirm.
Background.
The defendant and the victim were in a dating relationship. At 5:15 P.M. on December 19, 2018, Beverly police officer William Cargile responded to a noise complaint at the victim's apartment. The victim told Cargile that there had been a verbal argument but that no physical contact occurred. Observing no injuries to the victim, Cargile left. Later that night, the defendant "passed out" after drinking vodka. During this time, the victim looked at the defendant's phone and discovered messages and photographs from other women. The victim tried to wake the defendant to no avail. She eventually threw a glass of water in his face, and the defendant woke up. He grabbed the victim's throat, slammed her into the floor, punched her in the left eye, placed his forearm on her throat, covered her nose and mouth with his hand and said, "this is how people die." The victim broke free and ran to her bedroom to call a friend. The defendant followed the victim upstairs and "proceeded to bear hug" the victim on her bed but continued to strangle her. The victim was again able to break free and run to her friend's car, and the friend drove her to the police station. At the station, Cargile observed that the victim's hair was disheveled, she was crying, and that she had a swollen left eye and red left cheek.
Discussion.
1. Jury trial waiver.
The defendant argues that his jury trial waiver was not free, intelligent, and voluntary. Because the defendant signed a written jury waiver form and the judge conducted a thorough colloquy, "the sole focus of our review is whether the colloquy has provided an evidentiary record on which the judge could find the waiver was voluntary and intelligent" (citation omitted). Commonwealth v. Hendricks, 452 Mass. 97, 107-108 (2008). We conclude that it does. The judge explained the constitutional rights that the defendant was waiving and ensured that he had the opportunity to consult with counsel before doing so. See id. at 106-108 &n.5. The judge also inquired about the defendant's age, mental illness and condition, absence of drug or alcohol use, and education. While we understand that the defendant was frustrated about the availability of jury trials during the COVID-19 pandemic, this in and of itself does not render his waiver involuntary and unintelligent.
2. Waiver of right to testify.
The defendant next argues that he was "tricked into not testifying" to avoid the admission of evidence of his criminal record. While a defendant's right to testify is fundamental, the "defendant bears the burden of showing by a preponderance of the evidence that his waiver of the right to testify was not valid" (citation omitted). Commonwealth v. Garvin, 456 Mass. 778, 786 (2010). Here, the judge conducted a detailed colloquy, ensured that the defendant consulted with his attorney, and was satisfied with that advice. That the defendant complains that his criminal record was a factor in his decision not to testify shows that the defendant understood the consequences of his decision. See Commonwealth v. McGillivary, 78 Mass.App.Ct. 644, 651 (2011) ().
3. Ineffective assistance of counsel.
The defendant argues that his trial counsel was not properly prepared for trial and thus constitutionally ineffective for failing to (1) meet with him in person before trial; and (2) call the victim's friend as a witness. "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807 810 (2006). Here, it is presented in its weakest form, as it is raised for the first time on appeal on the trial record alone. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Generally, to prevail on an ineffective assistance of counsel claim, a defendant...
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