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Commonwealth v. Pepin

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 1, 2015
13-P-1936 (Mass. App. Ct. Jun. 1, 2015)

Opinion

13-P-1936

06-01-2015

COMMONWEALTH v. BELGICA PEPIN.


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 in the District Court, the defendant was found guilty of witness intimidation, G. L. c. 268, § 13B. Subsequently, she filed a motion for a new trial on the basis of ineffective assistance of counsel. The motion judge, who was also the trial judge, denied the motion without holding an evidentiary hearing. On appeal, the defendant argues that the denial of her motion for a new trial was error because the motion record established that trial counsel was ineffective by (1) failing to impeach the victim with a prior inconsistent statement contained in the police report and (2) failing to interview and later subpoena as a witness at trial, the victim's teenage daughter, who observed the underlying altercation. We affirm.

"In reviewing an order granting or denying a motion for a new trial, we accord deference to the views of a motion judge who was also the trial judge." Commonwealth v. Spray, 467 Mass. 456, 471 (2014), quoting from Commonwealth v. LeFave, 430 Mass. 169, 176 (1999). The decision whether to grant a motion for a new trial is left to the sound discretion of the motion judge. Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

To provide context, we briefly summarize the trial record. The defendant's conviction for witness intimidation arises out of her troubled relationship with the victim, the wife of her son, and a verbal altercation that took place at the victim's home. The victim had previously reported to police that the defendant's son had violated a restraining order and abused her. About a month later, the defendant drove over to the victim's home, aggressively confronted the victim, and, as will be discussed in further detail below, told the victim that "if the victim [did not drop the charges against the defendant's son], then [the victim] would know what is was like to lose a son," and that the defendant had "enough strength to grab a bat and split [the victim's] head in two". The victim's teenage daughter witnessed the verbal altercation.

1. Discussion. Applying the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we find both of the defendant's contentions to be unavailing.

As to the first contention, that trial counsel was ineffective for failing to impeach the victim with her inconsistent statement contained in the police report, we reject this. "Generally, failure to impeach a witness does not amount to ineffective assistance of counsel." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). "[A]bsent counsel's failure to purse some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Ibid. Trial counsel's strategy appears to have been designed to show the defendant as a loving grandmother with numerous children and grandchildren, while simultaneously attempting to impeach the victim's credibility with evidence that she did not report the incident immediately to the police and would not allow the defendant's investigators to speak with her daughter, the only witness to the altercation. In furtherance of this strategy, through cross-examination, counsel was a able to elicit testimony from the victim that she did not report the altercation to the police for almost a week, that she met with her lawyer before she reported the incident to the police, and as noted above, refused to allow her daughter to be interviewed by the defendant's investigator. On this record, we cannot say that trial counsel's strategic decision was "manifestly unreasonable." Commonwealth v. Alammani, 439 Mass. 605, 613 (2003).

The defendant's related contention -- that trial counsel was ineffective for failing to move to admit the police report in evidence -- is meritless. The police report constituted inadmissible hearsay. See, e.g., Commonwealth v. McLaughlin, 433 Mass. 558, 564-567 (2001).

While trial counsel's cross-examination was not as fulsome as could have been developed given the nature of the parties involved and the interfamilial conflicts (for example, in developing bias), in light of counsel's tactical strategy to present the defendant as nonaggressive person, counsel's failure to impeach the victim with her initial statement to police does not rise to the level of ineffective assistance of counsel.

To this we add that the victim's initial statement to the police -- that the defendant had told her to "drop the charges and if not then [you'll be] be sorry for your life" -- and the victim's trial testimony -- that the defendant told the victim to get her son out of jail or the victim "would know what it's like to lose a son," and that [the defendant] "had enough strength to grab a bat and split [the victim's] head in two, and then go to Santa Domingo" -- in our view, although not wholly consistent, did "not directly contradict" her earlier statement to the police. Commonwealth v. Wall, 469 Mass. 652, 664 (2014).

The defendant's second argument, that trial counsel was ineffective for failing to interview and subpoena the victim's daughter, similarly fails. "[I]neffective assistance of counsel is not established merely by showing that the defendant's counsel did not call additional witnesses," and "[t]o prevail, the defendant must show that the purported testimony would have been relevant or helpful." Commonwealth v. Ortega, 441 Mass. 170, 178 (2004). In the present case, the defendant has failed to provide an affidavit from the victim's daughter indicating the nature of the testimony she would have offered at trial. See ibid. Moreover, from all that appears, counsel requested and received funds for a court investigator, who in turn made at least one attempt to speak with the victim's daughter. In short, the defendant has failed to establish that the victim's daughter's testimony would have been helpful or that trial counsel failed to undertake reasonable efforts to interview a potential witness, and as such, failed to establish that "[c]ounsel's failure to call additional witnesses . . . likely deprive[d] the defendant of an 'otherwise available, substantial ground of defence.'" Id. at 179, quoting from Commonwealth v. Saferian, 366 Mass. at 96.

Judgment affirmed.

Order denying motion for new trial affirmed.

By the Court (Berry, Vuono & Rubin, JJ.),

The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.


Summaries of

Commonwealth v. Pepin

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 1, 2015
13-P-1936 (Mass. App. Ct. Jun. 1, 2015)
Case details for

Commonwealth v. Pepin

Case Details

Full title:COMMONWEALTH v. BELGICA PEPIN.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 1, 2015

Citations

13-P-1936 (Mass. App. Ct. Jun. 1, 2015)