Opinion
20-P-132
02-16-2022
COMMONWEALTH v. Jeffrey R. GOODWIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In the early morning of December 30, 1986, a twenty year old woman (the victim) was raped in East Boston. The victim subsequently identified the defendant, Jeffrey R. Goodwin, as the perpetrator. The defendant appeals from the denials of his motion for new a trial based on alleged ineffective assistance of counsel and motion for postconviction discovery. We affirm.
Background. 1. Facts. The victim spent the early morning of December 30, 1986, walking East Boston in search of her teenage sister. She encountered a man who offered to help her search. She later identified this man as the defendant. The victim and the defendant searched for the sister for about thirty minutes without success, passing a Boston police station in the process. Officer Colm Lydon observed the victim and a man -- whom he later identified as the defendant -- walk past the police station together. As the victim and the defendant passed a vacant lot, the defendant "grabbed [the victim] from behind, put a knife to [her] throat and said, ‘I'm going to rape you.’ " He then dragged the victim into the lot and raped her.
The sister had left the victim's apartment after an argument with their mother.
After the attack, the victim immediately reported the crime and described the perpetrator to police. Officer Lydon testified that he asked the victim whether the man who raped her was the man he had seen walking with her earlier; she said that he was. Later that day, the evening of December 30, the victim was driving through East Boston with a friend, Anthony Leonti, when she saw the defendant seated in a car stopped beside them. She told Leonti that "the man that raped me [is] in that car over there." Leonti got out of his car and confronted the defendant. Leonti recognized the defendant as a member of the Goodwin family and believed that the defendant's name was Jimmy Goodwin.
The defendant was one of seven Goodwin brothers -- Jack, James (also known as Jimmy), Joseph, Jeffrey (the defendant), Mark, Christopher, and Michael.
The victim and Leonti informed police that the victim had identified the perpetrator. Based on Leonti's recollection of the defendant's name, they informed the police that the perpetrator was Jimmy Goodwin. The police quickly learned that James (also known as Jimmy) Goodwin was incarcerated, ruling him out as a suspect. A series of identification procedures followed as the police, Leonti, and the victim attempted to ascertain the name of the man identified by the victim, throughout which the victim repeatedly identified the defendant as the perpetrator.
Police presented the victim with a photograph array of twelve men including the defendant's brother Joseph Goodwin. The victim noted that Joseph "looked like him but it was not him." The victim and Leonti visited the Goodwin home -- without the presence of police -- and viewed photographs of the Goodwin brothers. When the victim saw the photograph of the defendant, she threw the photograph on the table and "told them that that was him." Police officers then presented the victim with a book of about sixty-five photographs and the victim again identified the defendant as the perpetrator. The victim later identified the defendant as the perpetrator at a probable cause hearing and at trial.
2. Procedural history. The defendant was indicted for aggravated rape and assault by means of a dangerous weapon. Defense counsel filed a motion to suppress the victim's identification of the defendant. Subsequently, trial defense counsel was appointed. After a four-day trial, a jury convicted the defendant on both indictments. The defendant filed a timely appeal, but that appeal was dismissed in March 1989 for lack of prosecution.
In August 2018, the defendant filed a motion for a new trial and motion for postconviction discovery pursuant to Mass. R. Crim. P. 30 (b) and (c) (4), as appearing in 435 Mass. 1501 (2001). Both motions were denied without a hearing, and the defendant appealed. We now consider the consolidated appeal from the denials of both motions.
Discussion. 1. Standard of review. "A motion for a new trial is addressed to the sound discretion of the judge. ‘[A]n appellate court will examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion" (citations omitted). Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). A judge may deny a motion for a new trial "without an evidentiary hearing, ‘if no substantial issue is raised by the motion or affidavits.’ " Commonwealth v. Marrero, 459 Mass. 235, 240 (2011), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001).
"Where a new trial motion is based on ineffective assistance of counsel, the familiar standard used to analyze such a claim is ‘whether 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 ... whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.’ "
Commonwealth v. Watson, 455 Mass. 246, 256 (2009), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Trial tactics which, from the vantage point of hindsight, can be seen to have failed do not amount to ineffective assistance unless ‘manifestly unreasonable’ when undertaken" (citation omitted). Commonwealth v. Sielicki, 391 Mass. 377, 379 (1984).
2. Ineffective assistance of counsel. a. Vouching. The defendant argues that trial counsel was ineffective for failing to object to portions of Leonti's testimony. He asserts that statements by Leonti prejudiced the defendant by vouching for the victim's identification of the defendant.
First, the defendant points to Leonti's testimony following the victim's identification of the defendant in their chance encounter on the evening of December 30. Leonti testified that, as he approached the defendant's car, the defendant "opened his door and I saw him and I knew, I knew." Leonti was interrupted and went on to explain the physical appearance of the defendant, and state that he knew the man because he had "known his family" for decades. Viewed in context, the statement was a permissible identification of the defendant, see Commonwealth v. Grace, 43 Mass. App. Ct. 905, 907 (1997) (witness may identify person as someone they know), and did not constitute impermissible vouching. Contrast Commonwealth v. Villalobos, 7 Mass. App. Ct. 905, 905 (1979) (statement "believe me, these police officers know full well what's going on here" was vouching).
Second, Leonti testified that he told the defendant, "You know what you did," and that the defendant then "looked into my car and he saw [the victim] and his whole facial expression changed." This testimony was a permissible factual description of the defendant's demeanor. See Commonwealth v. Gerhardt, 477 Mass. 775, 786 (2017) ("A lay witness may testify concerning a defendant's observable appearance, behavior, and demeanor"). Because objection to either statement would have been fruitless and would have drawn attention to Leonti's damaging testimony, trial counsel's decision not to object was not "manifestly unreasonable" (citation omitted). Sielicki, 391 Mass. at 379.
The defendant's demeanor was relevant to his consciousness of guilt. See Commonwealth v. Borodine, 371 Mass. 1, 6-7 (1976), cert. denied, 429 U.S. 1049 (1977) ("defendant's demeanor and behavior in the course of police interrogation certainly was relevant").
Next, the defendant highlights Leonti's testimony that "I told [the defendant's] father what happened and it seemed like his father already knew." Here, trial counsel objected but failed to move to strike the statement or request a curative instruction. Assuming arguendo that this failure was error, we are not convinced that exclusion of the father's nonverbal response to Leonti's purported accusation of the defendant would have amounted to a substantial ground of defense, i.e., "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Leonti's brief reference to the father's demeanor came during a four-day trial that included significant evidence of the defendant's identification as the perpetrator. "A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials" (citation omitted). Commonwealth v. Bonnett, 472 Mass. 827, 843 (2015).
The victim repeatedly identified the defendant as the perpetrator. See note 3, supra. Further, Officer Lydon identified the defendant as the man he saw walking with the victim on the night of the assault.
b. Impermissible propensity evidence. The defendant argues that trial counsel was ineffective for failing to object to evidence that "painted the defendant's family as a bunch of criminals and [the defendant], in particular, as a violent criminal." First, he asserts that three convictions used to impeach his testimony were not probative of his truthfulness. "The use of evidence of prior criminal convictions to impeach the credibility of a witness, including the defendant, is specifically authorized by G. L. c. 233, § 21 .... The decision whether to admit [such] evidence ... involves an exercise of discretion by the judge" (citation omitted). Commonwealth v. Drumgold, 423 Mass. 230, 249 (1996). Generally, "the ‘prior conviction must be substantially similar to the charged offense’ " to warrant exclusion (citation omitted). Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000).
Specifically, the defendant contends that the introduction of his convictions for attempted escape from a penal institution, escape from a penal institution, and breaking and entering in the nighttime were not probative of his truthfulness.
Here, trial counsel moved to exclude the defendant's prior convictions. At a hearing on the motion, the Commonwealth agreed not to introduce evidence of a conviction of assault and battery by means of a dangerous weapon due to its similarity to the charged offense. The judge denied the motion with respect to the three convictions challenged here, impliedly finding them sufficiently dissimilar. It was not manifestly unreasonable for trial counsel to decline to object again at trial when admission of the convictions was within the judge's discretion. See Commonwealth v. Weaver, 400 Mass. 612, 618-619 (1987) (within judge's discretion to refuse to exclude dissimilar convictions).
The judge also provided limiting instructions following admission of the prior convictions and in her final jury charge.
Second, a Boston police officer testified that two of the defendant's brothers, James (also known as Jimmy) Goodwin and Joseph Goodwin were ruled out as suspects because they were in custody at the time of the crime. Trial counsel did not object. When a defendant raises a Bowden defense, a defense based "on the failure of police adequately to investigate[,] ... the Commonwealth has the right to rebut it." Commonwealth v. Avila, 454 Mass. 744, 753 (2009). Here, the defendant repeatedly questioned the investigation, highlighting the fact that the defendant's brothers had at times been suspects. Where police officers permissibly clarified why they focused the investigation on the defendant, it was not error for defense counsel to decline to raise what would have been a futile objection. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000) (where "[t]he defendant has inserted into the case the relevance of the police judgment and decisions[,] the officer must be allowed to defend that judgment").
See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
Finally, the defendant points to testimony by a Boston police officer that he understood an address to be the defendant's because he had been there previously "on a search warrant to arrest [the defendant]." Assuming that failure to object was error, we are not convinced that it created a substantial risk of a miscarriage of justice. The error was brief and isolated in the context of a four-day trial that included substantial evidence of the defendant's guilt. See Commonwealth v. Delong, 72 Mass. App. Ct. 42, 45 (2008) (no substantial risk of miscarriage of justice where "[t]he challenged testimony consisted of three fleeting references made over the course of a four-day trial in which there was substantial evidence of guilt").
c. Consciousness of guilt instruction. The defendant contends that the judge erred in failing to provide an instruction on consciousness of guilt, and that trial counsel was ineffective for failing to request one. This argument is unavailing because, at the time of trial in 1988, a consciousness of guilt instruction was not mandatory. Thus, there was no error in the judge's decision not to give the instruction sua sponte. See Commonwealth v. Clark, 20 Mass. App. Ct. 392, 395-396 (1985) (finding no error where both parties argued consciousness of guilt but no instruction was given). We also see no error in trial counsel's failure to request one. "[H]aving the judge refer to the evidence of consciousness of guilt tends to emphasize the importance of that evidence in the jurors’ minds. We [do] not second guess defense counsel's decision as to the wiser tactic to employ in a particular case." Id.
Between 1993 and 1995, trial judges were required to give a consciousness of guilt instruction sua sponte. See Commonwealth v. Cruz, 416 Mass. 27, 29 (1993) (mandating consciousness of guilt instruction); Commonwealth v. Walker, 421 Mass. 90, 97 (1995) (reversing Cruz and ruling consciousness of guilt instruction discretionary).
d. Fresh complaint testimony. The defendant argues that trial counsel was ineffective for failing to object to testimony by officers regarding the victim's report of the crime. He contends that such evidence was not admissible as "fresh complaint" evidence of a sexual assault because it was not relevant where the identity of the perpetrator was the only live issue at trial. "Under the fresh complaint doctrine in effect at the time of trial, the Commonwealth was permitted to introduce out-of-court statements seasonably made by the victim after [an] alleged sexual assault for the purpose of corroborating her own testimony concerning the alleged assault." Commonwealth v. King, 445 Mass. 217, 218 (2005).
Here, the judge admitted testimony from two police witnesses regarding the victim's report of the assault, corroborating the victim's account. Trial counsel did object to the second witness's fresh complaint testimony, on grounds it was duplicative, and was overruled. The judge issued limiting instructions in both instances, and again in the final charge. The defendant cites no authority to suggest that, at the time of trial, fresh complaint evidence was inadmissible in cases where the defense was based solely on identity. See Commonwealth v. Bishop, 9 Mass. App. Ct. 468, 468-469 (1980) (admitting fresh complaint evidence in case where identity was sole defense). Given the law at the time of trial, trial counsel was not ineffective for failing to advance an objection on these grounds.
The defendant is not entitled to benefit from changes in the law long after the expiration of his direct appeal. See Commonwealth v. Beauchamp, 424 Mass. 682, 685-686 (1997).
e. Motion to suppress. Finally, the defendant contends that trial counsel was ineffective for failing to litigate a motion to suppress filed by prior defense counsel. The motion sought to suppress the victim's identification of the defendant because the identification procedures used were so suggestive as to materially taint subsequent identifications. "[A] criminal defendant has the burden to prove, by a preponderance of the evidence, that the procedures involved in [an identification] were ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification’ and thus were offensive to due process" (citation omitted). Commonwealth v. Melvin, 399 Mass. 201, 205 (1987).
Here, the victim independently identified the defendant as the perpetrator while driving through East Boston. The defendant avers that "Leonti's behavior at [the time] strongly suggested to the victim that Goodwin was the rapist." However, the record shows that, upon seeing the defendant within hours of the rape, the victim made an unprompted and unequivocal identification of him as the man who sexually assaulted her. Cf. Commonwealth v. Pearson, 87 Mass. App. Ct. 720, 724-725 (2015) (identification not unduly suggestive; fifty-three days after rape, victim saw defendant in passing car and subsequently identified him in showup). Where no showing of impermissibly suggestive conditions has been made, pursuit of the motion would not have accomplished anything meaningful for the defense. Therefore, trial counsel was not ineffective for abandoning the motion.
Much is made of Leonti's incorrect recollection of the defendant's first name as "Jimmy." However, there is no dispute that the victim saw the defendant and identified him as her assailant. Any subsequent confusion involved the defendant's first name, not his identity as the perpetrator.
The defendant's contention that "the police officer's subsequent request for the whereabouts of all Goodwin brothers" in the presence of the victim was impermissibly suggestive is also unavailing where there is no dispute that the man originally identified by the victim was the defendant.
3. The motion for postconviction discovery. The defendant also appeals from the denial of his motion for postconviction discovery. "In requesting [postconviction] discovery, a defendant must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial." Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). Here, the defendant's discovery request was vast and speculative. The motion was properly denied where it was overly broad and failed to articulate what evidence was likely to be found. See Commonwealth v. Ware, 471 Mass. 85, 94 (2015).
The discovery motion sought, inter alia, "[u]nredacted copies of all police reports[,] ... [c]opies of any and all Boston Police Department policies and procedures relating to identification procedures at the time that they were performed in these cases[,] ... [and c]opies of any notes or other writings made in investigation of these cases. The motion also sought production of "[a]ll discovery" that had already been provided before trial, under the rule then in effect, Mass. R. Crim. P. 14, 378 Mass. 874 (1979).
The defendant asserts that the request " ‘is reasonably likely to uncover evidence that might warrant granting a new trial’ ... for the reasons set forth in the new trial motion and memorandum."
Conclusion. Seeing no abuse of discretion or error of law, the orders denying the motion for a new trial and motion for postconviction discovery are affirmed.
To the extent that we have not specifically addressed subsidiary arguments in the defendant's brief, "[w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
So ordered.
affirmed