8 N.E.3d 782
Mass. App. Ct.2014Background
- Aspen was convicted of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery; complainant was his stepdaughter.
- The convictions were upheld on direct appeal; Aspen moved for a new trial alleging ineffective assistance of trial and appellate counsel.
- The trial asserted failures including not calling an expert, not calling available character witnesses, advising Aspen not to testify, and inadequate impeachment of the complainant and her mother.
- The trial court denied the motion; the appellate court reviewed for Saferian-standard error and material benefit to defense.
- The court reversed, finding reversible error in the admission and handling of expert testimony (CSAAS) and ineffectiveness of appellate counsel for not raising that issue, and ordered a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failing to call CSAAS expert | Aspen argues Dr. Kennedy would have rebutted CSAAS. | Laid out that cross-examination sufficed and Kennedy’s testimony would not add material value. | Appellate counsel’s failure to raise the issue was prejudicial; better work might have altered outcome. |
| Failure to call available character witnesses | Evidence of general reputation and cross-examination could aid defense. | Strategic choice; private opinions not admissible and cross-examination sufficient. | Not manifestly unreasonable; no reversible error shown. |
| Appellate counsel ineffective for not raising Federico/Federal standards | Federico issue was substantial and likely to yield reversal or new trial. | Counsel’s strategic choice in selecting issues. | Appellate counsel’s performance fell below standard; failure to raise has material defense significance. |
| Admission and impact of Dr. Brant’s testimony (CSAAS/profile evidence) | Testimony improperly linked to credibility; could be prejudicial and improper vouching. | Counsel objected; jury instructions were standard; closing argument references were limited. | Profile-type testimony and related references were reversible error; caused prejudice given credibility reliance. |
| Jury selection and fresh complaint evidence | Closed voir dire and fresh complaint evidence may have affected verdict. | Issues framed as procedural; argument not central after reversal. | Issues not necessary to reach result; focus remained on expert testimony and appellate failure. |
Key Cases Cited
- Commonwealth v. Saferian, 366 Mass. 89 (Mass. 1974) (test for ineffective assistance: serious incompetency or deficiency; potential material defense impact)
- Commonwealth v. Satterfield, 373 Mass. 109 (Mass. 1977) (whether better work might have accomplished something material for defense)
- Commonwealth v. Baran, 74 Mass. App. Ct. 256 (Mass. App. Ct. 2009) (SAFERIAN standard; effectiveness of trial counsel under appeal)
- Commonwealth v. Acevedo, 446 Mass. 435 (Mass. 2006) (strategic decisions not manifestly unreasonable; evidence admissibility)
- Commonwealth v. Federico, 425 Mass. 844 (Mass. 1997) (limits on expert testimony: not to vouch for credibility or diagnose abuse; profiles only)
- Commonwealth v. LaCaprucia, 41 Mass. App. Ct. 496 (Mass. App. Ct. 1996) (expert testimony cannot implicitly endorse credibility; improper linkage)
- Commonwealth v. Poitras, 55 Mass. App. Ct. 691 (Mass. App. Ct. 2002) (profile testimony condemned when it mirrors case and aids credibility)
- Commonwealth v. Day, 409 Mass. 719 (Mass. 1991) (limits on expert testimony regarding perpetrators’ profiles)
- Commonwealth v. Trowbridge, 419 Mass. 750 (Mass. 1995) (limits on expert linkage to witness credibility)
- Commonwealth v. Montanino, 27 Mass. App. Ct. 130 (Mass. App. Ct. 1989) (credibility determinations reserved to jury)
- Commonwealth v. Richardson, 423 Mass. 180 (Mass. 1996) (limitations on expert testimony and credibility)