Opinion
14-P-1181
05-04-2017
COMMONWEALTH v. Leonard ZACCAGNINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Leonard Zaccagnini, of indecent assault and battery on a child under fourteen years of age, in violation of G. L. c. 265, § 13B. In his direct appeal, the defendant contends that the trial judge erred when he denied the defendant's motion for voir dire of the complaining witness, and did not give a first complaint jury instruction. The defendant also appeals the denial of his motion for new trial, claiming that trial counsel was ineffective because he failed to request the first complaint witness instruction, allowed a law student to cross-examine one of the Commonwealth's witnesses, and withdrew a motion to suppress statements made by the defendant during a police interrogation. The defendant further contends that he was denied due process due to the substantial delay in prosecuting the appeal, an inadequate record, and the loss of evidence after the trial. We affirm.
The defendant was found not guilty of statutory rape, pursuant to G. L. c. 265, § 22A.
Discussion. First complaint evidence. The defendant asserts multiple grounds of error with respect to the testimony of the father. "Once a judge has ... decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard." Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
The defendant argues that the judge erred in not permitting the defendant to conduct a voir dire in order to determine the identity of the first complaint witness. The decision to deny voir dire of a witness is reviewable for an abuse of discretion. See Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). The daughter testified before the father, and it was clear by the time the father testified that he was not the first complaint witness. The Commonwealth did not offer the father as a first complaint witness. Voir dire would have added nothing to what trial counsel knew at the time the father testified. There was no abuse of discretion.
The defendant also makes several additional arguments that the substance of the father's testimony was improper. Those arguments reduce to the proposition that some aspect of the father's testimony was inadmissible opinion or hearsay—and that voir dire would have illuminated those matters in advance. It is unclear how a voir dire of the daughter would have illuminated evidentiary deficiencies of the father's testimony. The defendant makes no other sustained legal argument, with citation to relevant authority, regarding the inadmissibility of the challenged testimony. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996) (Arguments "not supported by reasoned argument or citations ... do not rise to the level of appellate advocacy required under Mass.R.A.P. 16 [a][4]"); Commonwealth v. Balboni, 89 Mass. App. Ct. 651, 661 (2016) (Claims of error that "lack[ ] articulated reasoning and citation to authority" are not addressed).
We nonetheless address the arguments briefly. The father's statements that he did not believe the defendant's denials, and that the defendant's wife was convinced that something had happened were elicited on cross-examination, and cannot be laid at the Commonwealth's doorstep. See Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009) (no error when defendant "opened the door" to unfavorable testimony during cross-examination). The fact that the father was recalled to the witness stand after the sequestration order as to him had been lifted (over the defendant's objection) was, in hindsight, unfortunate. The father falsely testified that he had not spoken to the prosecutor before being recalled, but he was wholly impeached by the prosecutor's stipulation that he did in fact speak with the father. As a result of that stipulation, any prejudice associated with the father's testimony became severely attenuated. Accordingly, even if some or all of the testimony was admitted in error, the defendant has not established that the error was either prejudicial or created a substantial risk of miscarriage of justice.
The father testified that his daughter made a disclosure to him, and that she was upset and crying. The defendant claims that the father's testimony was improper first complaint testimony. See Aviles, supra at 70 (Testimony of victim's mother that victim made additional report to her was not admissible as first complaint evidence). However, as Aviles makes clear, the evidence was properly admitted for independent purposes—rebutting the defense theory of fabrication. Id. at 70-71. The defense theory was that the daughter made numerous reports to various people, and that her story changed with each telling. On cross-examination, trial counsel questioned her about those reports, and even expanded the list of people to whom she had spoken to include many who had not been disclosed on direct examination. The judge did not err in ruling that the father was not a first complaint witness, and that the father's testimony was independently admissible. See Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509-510 (2009), and cases cited. For the same reasons, there was no basis for a first complaint instruction, and counsel was not ineffective because he did not ask for one.
In addition, the testimony was admissible to the extent that it described the daughter's demeanor. See Commonwealth v. McCoy, 456 Mass. 838, 846 (2010).
Ineffective assistance of counsel. The defendant contends he was denied effective assistance of counsel because trial counsel should not have allowed a law student certified under S.J.C. Rule 3:03(1), as amended, 463 Mass. 1301 (2012), to cross-examine a Commonwealth witness. He also claims trial counsel was ineffective because the appeal languished for eight years. The delay, the defendant claims, prevented the reconstruction of the record and contributed to the loss of evidence.
We review the denial of a motion for new trial on the grounds of ineffective assistance of counsel for an abuse of discretion. Commonwealth v. Millien, 474 Mass. 417, 429 (2016). To prevail, "[a] defendant must demonstrate a ‘serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.’ In regard to the latter requirement, ‘there ought to be some showing that better work might have accomplished something material for the defense.’ " Commonwealth v. Bell, 460 Mass. 294, 303 (2011), quoting from Commonwealth v. Johnson, 435 Mass. 113, 123 (2001)
1. Cross-examination by law student. On the first day of trial, a law student working with defense counsel cross-examined a Commonwealth witness. A law student is not authorized to examine witnesses in a Superior Court criminal trial. See S.J.C. Rule 3:03(1) (student practice).
The next morning, the judge informed the parties that the law student's participation was not authorized by the rule. That same day the defendant filed an affidavit stating he had consented to the law student's examination of the witness at trial. Defense counsel was present at all times, and the student was under his supervision. The judge made findings that the direct examination was appropriate and "there were no objections that would have or should have been raised." He also found that the cross-examination was appropriate and "beneficial" to the defense.
The student was rule 3:03 certified and the underlying documentation was put on the record.
The defendant contends that trial counsel's decision to allow the law student to participate in the trial fell below the standards expected of an ordinary fallible lawyer. That argument is belied by the fact that the misstep initially eluded both the prosecutor and a highly experienced trial judge. However, even if we were to assume, without deciding, that allowing the law student to cross-examine the witness satisfied the first Saferian criterion, the defendant has not demonstrated prejudice. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The unauthorized cross-examination by a law student was not structural error, as the defendant contends. The defendant was not deprived of counsel. See United States v. Cronic, 466 U.S. 648, 659 (1984) ; Commonwealth v. Mosher, 455 Mass. 811, 819 (2010). The defendant's attorney was present at all times, supervised the law student, and conferred with the law student during the cross-examination. The cross-examination did not "render the ‘adversary process itself presumptively unreliable’ or ... constitute ‘constitutional error of the first magnitude’ that simply cannot be cured even if the error was ultimately harmless." Commonwealth v. Valentin, 470 Mass. 186, 196 (2014), quoting from Cronic, supra.
Nor was the defendant prejudiced by the cross-examination. The trial judge found that there were no objections that would have or should have been raised, and that the law student asked "appropriate questions of the witness that were beneficial to the defense on cross-examination."
The cross-examination sought to impeach the witness, and pursued a "trial strategy to show that members of [the victim's] family desired revenge and thus lied about the sexual assault charges." Commonwealth v. Kebreau, 454 Mass. 287, 301 (2001). Furthermore, the law student suggested that the defendant is "a little slow," which the defendant now asserts, see infra, was an issue that trial counsel failed to explore.
2. Delay in appeal. The defendant contends that trial counsel was ineffective because he failed to take steps to either prosecute the appeal or retain appellate counsel. While we agree that trial counsel was ineffective in this regard, the defendant has not shown how he has been prejudiced by the delay. See Commonwealth v. Thomas, 400 Mass. 676, 684-685 (1987). In his order denying the defendant's motion for new trial, the motion judge, who was also the trial judge, stated that he had made known that he was available to reconstruct the record of the missing testimony of August 3, 2006. The defendant did not ask the judge to assist in reconstructing the record, and may not now complain that the delay in the appeal resulted in the loss of the testimony of the morning of August 3, 2006.
During the period of time the appeal was stalled, shed doors that were an exhibit at trial were lost. The defendant was not prejudiced by the loss of the shed doors. At trial, the jury heard conflicting evidence regarding the shed doors, and were able to examine the doors. The jury had all of the evidence it needed. See generally Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 360 (1999) (evidence lost before trial); Commonwealth v. Rodriguez, 50 Mass. App. Ct. 405, 406-409 (2000) (evidence lost between trial and retrial after appeal). And, because issues of credibility are for the jury alone and not an appellate court, see Commonwealth v. Casey (No. 1), 442 Mass. 1, 8 (2004) ; Commonwealth v. Mendez, 476 Mass. 512, 523-524 (2017), there is no showing that the shed doors would have been material to this appeal.
Motion to suppress. The defendant contends that trial counsel should not have withdrawn the motion to suppress statements made by the defendant during a police interview because the statements were not voluntary. The defendant now claims that he lacked the mental capacity to knowingly and voluntarily waive his constitutional rights. He further claims that his trial counsel should have introduced evidence to the jury of his lack of mental capacity.
"The judge may rule on the motion for a new trial from the face of the affidavits or other supporting material, without an evidentiary hearing, ‘if no substantial issue is raised by the motion or affidavits.’ " Commonwealth v. Marrero, 459 Mass. 235, 240 (2011), quoting from Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001).
The defendant's supporting affidavits did not raise a substantial issue. The defendant relied exclusively on a psychological evaluation conducted after trial as part of a probation surrender hearing. The psychologist opined that the defendant's cognitive impairments interfered "with his ability to comply with the registration requirements" of the sex offender registry. The psychologist did not opine that the defendant was lacking the rational intellect necessary to give consent. See Commonwealth v. DiGiambattista, 83 Mass. App. Ct. 180, 183-184 (2013). To the contrary, the psychologist acknowledged that the defendant understood the purpose of the evaluation and consented to it. The defendant has failed to establish that trial counsel was ineffective because he has not shown that the motion would have prevailed. See Commonwealth v. McWilliams, 473 Mass. 606, 615 (2016).
The defendant further contends that trial counsel was ineffective because he did not ask for a DiGiambattista instruction. See Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004). The defendant was not entitled to the instruction because he was not in custody at the time the statements were made. See ibid. The motion judge found that the defendant's interview was not custodial. See Commonwealth v. Murphy, 442 Mass. 485, 493 (2004). The defendant went to the police station voluntarily. At the end of the interview, the defendant "left the station of his own volition." The motion judge did not err in concluding that no DiGiambattista instruction was warranted and that trial counsel was not ineffective.
Before the interview began, the defendant received Miranda warnings, and signed a Miranda rights waiver. "The fact that Miranda warnings were given did not make the interview custodial." Commonwealth v. Trombley, 72 Mass. App. Ct. 183, 186 (2008).
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Judgment affirmed.
Order denying motion for new trial affirmed.