Opinion
No. 12–P–508.
09-29-2016
COMMONWEALTH v. Jesse A. ESTELOW, Third.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Jesse A. Estelow, III, of rape, breaking and entering in the nighttime with intent to commit a misdemeanor, and assault and battery. On appeal he contends that (1) he did not intelligently and voluntarily waive his right to counsel during a portion of pretrial proceedings; (2) the video recording of his police station interview, which was played to the jury, contained inadmissible statements; (3) the admission of prior bad act evidence was unfairly prejudicial; (4) the judge erred in denying his motion for a new trial based on a claim of ineffective assistance of counsel; and (5) a comment by the judge during the final charge constituted prejudicial error. We affirm.
The final contention and a portion of the defendant's ineffective assistance of counsel claim are brought pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).
Background. We summarize the relevant facts, reserving more detailed discussion in some instances for our analysis. In 2004, the victim was a bartender at a bar in Pittsfield and met the defendant. They commenced a dating relationship, and in 2006, the defendant moved into her home in Dalton. Over time, the defendant increasingly exercised control over the victim, accused her of being with other men, displayed jealousy and anger toward her, and repeatedly berated her. Over the course of their relationship, the defendant borrowed thousands of dollars from the victim. At the time of the incident, the defendant owed her approximately $22,000.
In August, 2010, the victim asked the defendant to leave her home, and he eventually departed in October. The victim tried to stay on friendly terms with the defendant because she was afraid that he would return and retaliate against her. The defendant would telephone the victim, occasionally leaving belligerent messages. Afraid that the defendant “was going to come back and kill [her],” the victim saved the telephone messages.
On a few occasions, the victim allowed the defendant into her home because he told her that he was sleeping in his dump truck and had no place to stay. On one of these occasions, the defendant offered the victim money in exchange for sex, but she refused. On November 2, 2010, when the defendant came to the victim's home to shower, he displayed a .22 black derringer to her. She felt threatened because the defendant had threatened her in the past; he always had threatened that he would “get [her] back [and she] would need the police to get him out of [her] house.”
On Friday, November 5, 2010, the victim left work and found a business card on her windshield from the defendant expressing his love for her. After she returned home, the defendant telephoned her and asked to stay overnight at her home. The defendant “was just begging, pleading, crying and 20 minutes into the conversation he said I'm sitting right in your driveway.” She asked him to leave her property, and he responded by saying he would leave if she gave him a hug. The victim agreed to meet him on the front steps. The defendant met her at the front door. He was intoxicated. Despite her cries of “you have to leave,” the defendant entered the home. The defendant was “like a wild man.” As he removed his shirt, he screamed “who the F is in the house?” He subsequently grabbed the victim's calves, flipped her on her back, and smashed her head into the arm of the couch. The defendant pulled her legs up over her head and removed her pajamas and underwear. He said that if she gave him “pussy one more time” he would leave. The victim refused. The defendant asked her if she thought that he was a rapist, and she said “yes.” The defendant carried her to the bedroom, threw her on the bed, and removed her pajamas. The victim “just laid there” because she knew she could not fight him. The defendant declared, “go ahead and act like you are dead.” He turned her over and put a pillow under her stomach. He performed oral sex on her followed by vaginal intercourse. The victim told him that he was hurting her. He told her to “shut the fuck up, [you] can take it.” She repeatedly told the defendant to stop. She was “crying very hard” and “in pain.” After the defendant ejaculated, he got up, cleaned himself off, and left the house without saying a word. The victim initially did not contact the police because she did not want to “get him in trouble” and she feared retaliation.
The following morning, November 6, 2010, the victim telephoned her friend, Patricia, indicated that she had been raped by the defendant, and provided her details of the sexual assault. Patricia persuaded the victim to go to the police station. The victim did so to obtain a restraining order. Eventually she broke down, told the police that she had been raped by the defendant, and was transported to the Berkshire Medical Center. An examination was conducted by Dr. Alexander Rachmiel and Nurse Tracy Martin. A restraining order issued against the defendant, who was arrested by the Pittsfield police that day. Prior to being informed of the charges, the defendant stated, “[T]his is all because of some girl.” After being informed of his Miranda rights, the defendant agreed to talk with the police. The defendant admitted that he had sex with the victim, but claimed that it was based on a financial arrangement; stated that he did not pay the victim; admitted that the sexual encounter caused the victim pain; and admitted that “maybe” he had “fucked her a little bit too hard.”
Discussion. 1. Waiver of counsel. The defendant claims that he did not knowingly and intelligently waive his right to counsel, because the judge did not conduct a sufficient colloquy, the waiver was not properly memorialized in writing, and the defendant did not sign a written waiver. We disagree.
A waiver is voluntary and effective where a defendant is made aware, via colloquy, of the magnitude of the undertaking, the disadvantages of self-representation, the existence of technical rules governing the conduct of the case, and the seriousness of the charges. See generally Cypher, Criminal Practice and Procedure § 20:37 (4th ed.2014). Here, the judge asked the defendant to confirm that he wished to represent himself. In response, the defendant stated, “Absolutely, sir.” The judge then conducted an appropriate colloquy during which he advised the defendant that “there are risks when a defendant represents himself.” The defendant advised that he had conducted research, understood pretrial discovery, knew the rules of the court, albeit “not 100%,” and had studied standing orders and Massachusetts criminal procedure. After some back and forth during which the defendant seemed to hedge against self-representation, the judge continued his colloquy to ensure that the defendant was acting intelligently and voluntarily. The judge asked, inter alia, if the defendant understood that “there are grave risks in representing yourself? And we often encourage a person not to represent [himself]. You know, it's your constitutional right to represent yourself, but since you're not a lawyer and you're not going to be as familiar with the rules of procedure, the rules of evidence, the substantive law on the crime, it puts you at a disadvantage; do you understand that?” The defendant replied that he did and that he wished to represent himself. Moreover, when offered the assistance of standby counsel, the defendant insisted that he “would rather do it [himself].”
Although the waiver was not reduced to writing, the record affirmatively demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to counsel for some pretrial proceedings. See Commonwealth v. Clemens, 77 Mass.App.Ct. 232, 240 n. 10 (2010) (quotations and citations omitted) (“[The absence of] a written waiver of counsel ... is not conclusive of lack of waiver. In such circumstances, however, there must be sufficient other evidence in the record to demonstrate that the waiver was voluntary and intelligent”). Indeed, the defendant confirmed four times that he wished to represent himself. Furthermore, the defendant only represented himself at four pretrial hearings during which little of substance occurred. The record reflects that the judge allowed several of the defendant's pretrial motions, and the defendant had the benefit of the assistance of standby counsel who was familiar with the case, actively participated at the hearings, and ultimately served as the defendant's trial counsel. Reversal is not warranted.
We note that, posttrial, the defendant filed a pro se new trial motion and a pro se appellate brief.
The defendant argued a motion to suppress his “Statement Given Under the Influence.” He ultimately withdrew the argument, and the judge denied the motion. The video recording of the defendant's interview was marked as an exhibit at the motion hearing, and also at trial.
2. Video recording of defendant's interview. The defendant contends that statements made during his video recorded interview included unequivocal denials, hearsay, and evidence of prior convictions, all of which were inadmissible. Where the defendant did not object to the admission of this evidence at trial, we review to determine whether the alleged error created a substantial risk of a miscarriage of justice.
The record reflects that many of the defendant's purported “unequivocal denials” were ambiguous. The defendant equivocated, contradicted himself, and at times altered his story during the interview. See Commonwealth v. Lewis, 465 Mass. 119, 127 (2013) (defendant's ambiguous response to officer's question was admissible as statement of party opponent, and its meaning was for jury to determine). See also Commonwealth v. Cancel, 394 Mass. 567, 570–571 (1985) ( “When an accused responds to incriminating accusations made of him in an equivocal, evasive or irresponsive way inconsistent with his innocence, both the accusations and his answer are admissible” [quotation omitted] ), and cases cited.
To the extent that some of the defendant's denials were unequivocal, we view this as a strategic choice of counsel to allow the jury to hear his client's denials, and tell his side of the story without having to testify and subject himself to cross-examination before the jury. See Commonwealth v. Womack, 457 Mass. 268, 276 (2010) (“Neither did the admission in evidence of the defendant's denials cause prejudice. The core of any prejudice is more likely caused by admission of the accusations than the denials. The jury were able to hear evidence of his prompt, clear, and emphatic denials without his having to testify, something generally of great value to defendants”).
Finally, the video recording played to the jury during trial did not contain the alleged reference to the defendant's prior criminal record. Although a compact disc admitted into evidence contained a statement by a police officer that the defendant “[had] been through this [before],” there is no evidence that the jury heard that statement. Even assuming, arguendo, that the jury was exposed to this statement, the reference was brief, the evidence of guilt was strong, and we discern no substantial risk of a miscarriage of justice therefrom.
3. Prior bad acts evidence. The defendant contends that the admission of prior bad acts evidence “unfairly made the defendant seem like a bad person” and created a substantial risk of a miscarriage of justice. We disagree. The evidence at trial showed that the defendant obsessively harassed, intimidated, and pursued the victim, culminating in the rape. Evidence of the defendant's jealousy toward the victim, intimidating behavior, and displaying of a handgun to the victim, were relevant and admissible to show the context of the relationship between the parties, as well as the defendant's state of mind, motive, and intent. See generally Commonwealth v. Holloway, 44 Mass.App.Ct. 469, 475 (1998) (quotation omitted) (“When a defendant is charged with a sexual assault, evidence of similar crimes against the same victim if not too remote in time, is competent to prove an inclination to commit the [acts] charged in the indictment ... and is relevant to show the probable existence of the same passion or emotion at the time in issue”). Furthermore, the defendant did not object at trial to the vast majority of alleged prior bad acts evidence. Review of the entire trial record compels the conclusion that the probative value of the evidence outweighed the risk of undue prejudice. There was no error and thus no substantial risk of a miscarriage of justice.
The trial judge rejected similar claims in his denial of the defendant's motion for a new trial, finding that evidence of prior bad acts was admissible to provide the jury a view of the entire relationship between the defendant and the victim; explain the victim's actions when faced with the defendant's aggressive conduct; and explain the role that the defendant's jealousy and obsession played in the sexual assault. In addition, the judge concluded that a brief reference to the defendant's “hate cops” tattoo, particularly in view of the juror voir dire, did not create a substantial risk of a miscarriage of justice. The judge was in a superior position to make such determinations, which were well within his discretion. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
4. Ineffective assistance. The defendant next claims that his trial counsel was ineffective in failing to cross-examine the Commonwealth's medical expert regarding the possibility that a blister in the victim's genital area was caused by herpes. To prevail on such a claim, the defendant must 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, he 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) (holding that defendant is entitled to new trial if there is substantial risk of miscarriage of justice arising from counsel's failure, and explaining that prejudice standard under second prong of Saferian test is met when reviewing court has “serious doubt whether the jury verdict would have been the same had the defense been presented”).
Here, the parties dispute whether the issue was sufficiently raised in the defendant's motion for a new trial. We agree with the Commonwealth that the issue, though referenced briefly in the defendant's pro se motion, was not sufficiently briefed here with citation to authority to rise to the level of appropriate appellate argument. See generally Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Even assuming that the defendant properly raised the argument in his new trial motion, the judge did not abuse his discretion in denying the motion. The defendant essentially contends that the victim's medical records contained a reference to “Valtrex... an antiviral drug principally used to treat herpes .” The defendant posits that cross-examination of the testifying nurse regarding this medication may have accomplished something material for the defense. The argument is speculative and thus does not warrant relief. As the motion judge, who was also the trial judge, found, the defendant “fails to identify what result would be achieved if certain actions were taken.” Moreover, although the defense in the case was consent, there was no dispute that the sexual encounter involved rough behavior that caused the victim pain. To the contrary, the defendant admitted as much during his video recorded interview. He stated that the victim “was laying on her stomach [during sex] ... And she doesn't like doing it that way, because ... it hurts her bladder.... That's my way of doing it, and that's the way I asked her to do it.” The defendant described the sexual encounter as follows:
The defendant's posttrial pro se arguments are difficult to decipher. As noted by the judge, “the defendant identifies 36 alleged errors of [his trial counsel] ... [and] often fails to cite to any record or identify any legal support for his claims. It is simply a litany of complaints, some of which are unrecognizable.”
The defendant contended that he offered the victim money for sex; the victim consented; the sexual position caused her pain; the defendant subsequently refused to pay her as promised; consequently, the victim manufactured the rape claim.
“She told me to be careful! She told me to be com—‘don't—don't do it hard. Don't foo—‘. I said: ‘Fine. I'm not here to hurt you. I'm not—Jesus Christ.’ I said: ‘Listen, you're in here with me. I'm going [sic] you the money to do this. I'm not doing this because I wanna do this. You agreed to do it; and you're fine.’ [indicating female voice] ‘Just, just be more gentle. Don't push it in all the way.’ And that was the way it was.”
The defendant admitted that the victim “didn't like the position, and I didn't want to move out of it, ‘cause I wanted that position. And she was a little bit in pain, but she didn't tell me to stop.” He insisted that “nobody forced her” to have sex, yet admitted that the victim “didn't want to do it, but she did do it.” The defendant “knew she was upset because the fucking—maybe I fucked her a little bit too hard. And she kept telling me: ‘Don't do it too hard.’ “ The defendant's admissions confirm that the presence or absence of a blister had no bearing on an issue already conceded by the defendant—i.e., that he engaged in sexual intercourse that caused the victim pain. Accordingly, this is not a case where we have “serious doubt whether the jury verdict would have been the same had the defense been presented.” Millien, 474 Mass. at 432. Defense counsel did not render ineffective assistance by allegedly failing to cross-examine the nurse regarding the victim's medication, and the judge not abuse his discretion in denying the motion for a new trial.
We note the comprehensive and thoughtful findings of fact and rulings of law by the motion judge, who was also the trial judge. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995) (reversal for abuse of discretion particularly rare where judge acting on motion was also trial judge).
5. Trial judge comment. The judge's reference in his introductory comments to the final charge regarding “trial by fire” did not create a substantial risk of a miscarriage of justice. The comment, viewed in full context, was not erroneous. Moreover, the judge emphasized that the jury must decide the case solely on the evidence, and he clearly set forth the Commonwealth's burden of proof. Viewed as a whole, the instructions were clear, and we presume the jury followed them. See Commonwealth v. Owens, 414 Mass. 595, 607 (1993) (“Jury instructions must be construed as a whole”); Commonwealth v. Walker, 466 Mass. 268, 284 (2013) (quotations omitted) (“[W]e consider the charge in its entirety, to determine the probable impact, appraised realistically ... upon the jury's factfinding function”). Finally, in his denial of the defendant's motion for a new trial, the judge rejected the claim that the alleged error prejudiced the defendant. The record supports this determination.
To the extent that we have not specifically addressed subsidiary arguments in the defendant's briefs, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).