Commonwealth v. Vasquez, 13-P-1801

• Decision Date: 14 April 2016
• Docket Number: 13-P-1801
• Parties: COMMONWEALTH v. ALBERT VASQUEZ.
• Court: Appeals Court of Massachusetts

COMMONWEALTH v. ALBERT VASQUEZ.

13-P-1801

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

April 14, 2016

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), 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 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 1:28

After a jury trial, the defendant was convicted of two counts of rape of a child by force, G. L. c. 265, § 22A, and one count of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. This court affirmed the convictions in a consolidated appeal. See Commonwealth v. Vasquez, 74 Mass. App. Ct. 1120 (2009). Before us now is the defendant's appeal from the denial, after a nonevidentiary hearing, of his second motion for new trial. The defendant contends that (1) trial counsel's failure to investigate and call certain witnesses deprived him of his right to the effective assistance of counsel; (2) the Commonwealth engaged in misconduct by improperly using the same interpreters at trial that it used to prepare the victim for trial; (3) the Commonwealth violated the defendant's right to a public trial; and (4) the motion judge abused his discretion when he decided the defendant's motion without an evidentiary hearing. We affirm.

A judge may, in his or her discretion, grant a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), "if it appears that justice may not have been done." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). "The denial of a motion for a new trial will not be reversed unless the defendant demonstrates that the decision denying a new trial, if not reversed, will result in 'manifest injustice.'" Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), quoting from Commonwealth v. Watson, 409 Mass. 110, 114 (1991). Here, where the issues raised in the second motion for new trial could have been (but were not) raised in his first such motion, the claims are waived. Nonetheless, we review them to determine whether there was error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). "A substantial risk of a miscarriage of justice exists when we have 'a serious doubt whether the result of the trial might have been different had the error not been made.'" Id. at 297, quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). With these principles in mind, we turn to the defendant's arguments.

1. Ineffective assistance. In order to prevail on an ineffective assistance of counsel claim, a defendant must first show that "there has been serious incompetency, inefficiency, or inattention of counsel" that falls "measurably below that which might be expected from an ordinary fallible lawyer" and "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant first argues that his counsel failed to investigate the layout of the apartment in which the sexual assaults took place and, therefore, was unable to counter the cousins' testimony that they could see the assaults. Counsel's claimed failure to investigate is not supported by the record, and the judge accordingly cannot be said to have abused his discretion in denying the motion for new trial -- particularly given the absence of an affidavit from trial counsel.¹ See Commonwealth v. Lynch, 439 Mass. 532, 539 n.2 (2003) ("It is significant that no affidavit from trial counsel was submitted in connection with [the defendant]'s motion for a new trial").

The defendant next argues that trial counsel was ineffective because he failed to interview and call as witnessescertain family members. "Trial tactics which may appear questionable from the vantage point of hindsight . . . do not amount to ineffective assistance unless manifestly unreasonable when undertaken." Commonwealth v. Vaughn, 471 Mass. 398, 413 (2015), quoting from Commonwealth v. Haley, 413 Mass. 770, 777-778 (1992). Further, "[f]ailure to call a witness will not be considered ineffective assistance of counsel absent a showing of prejudice." Vaughn, supra, citing Commonwealth v. White, 409 Mass. 266, 275 (1991). The motion judge did not abuse his discretion in concluding that the defendant did not make the necessary showing here. As the Commonwealth points out, none of the affiants claimed personal knowledge of the assaults, nor did they provide the defendant an alibi. Contrast Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 632 (1992) (ineffective assistance where Commonwealth's case "turned entirely on the accuracy of [a witness]'s momentary identification of [the defendant]" but trial counsel failed to secure testimony of available alibi witness).

2. Interpreters. The defendant argues that he is entitled to a new trial because the prosecutor failed to disclose that two of the five trial interpreters participated in the prosecutor's trial preparation of the victim and that, as a result of that pretrial preparation, the interpreters were biased in the victim's favor. To support this argument, thedefendant points to a printout from the Massachusetts Commission for the Deaf and Hard of Hearing (commission) that appears to indicate that two individuals who served as interpreters at trial were dispatched to the Suffolk County district attorney's office on September 27, 29, and 30, 2004, days immediately preceding trial. The printout, however, is not self-explanatory, and the inference the defendant seeks to draw from it is not necessarily required. There were no affidavits from the court interpreters or from the commission. On this record, we cannot say the motion judge erred.

The defendant also contends that two of the interpreters were biased in the victim's favor because they had participated in preparing her for trial. However, the interpreters about whom the defendant makes this claim are not listed on the commission's printout as having been sent to the district attorney's office, and there is thus no factual basis upon which to...