136 N.E.3d 736
Mass. App. Ct.2019Background
- Defendant convicted in Superior Court of rape of a child with force, assault with intent to rape, and two counts of indecent assault and battery under G. L. c. 265, § 13H; appeals consolidated with denial of motion for new trial.
- Victim was 16 at trial; she testified the assaults began when she was "thirteen, fourteen" and could not give precise dates; she turned 14 on May 25, 2011.
- The assaults occurred repeatedly at the home of the victim's mother while the defendant (the mother’s boyfriend) stayed overnight; oral penetration occurred ~20–25 times and other touching occurred in the mother’s bedroom.
- Legal dispute whether § 13H requires the Commonwealth to prove the victim had "attained age fourteen" as an element of the crime; trial judge instructed jury the Commonwealth must prove age 14.
- Grandmother (guardian) testified the victim had an Individualized Education Program (IEP) and a learning disability; defendant argued this was improper lay opinion and undisclosed exculpatory evidence.
- Defendant sought new trial claiming ineffective assistance for failing to investigate/call the victim’s sister and for failing to call the mother; the motion judge (also trial judge) held evidentiary hearings and denied relief; appeals affirmed.
Issues
| Issue | Commonwealth's Argument | Dobbins' Argument | Held |
|---|---|---|---|
| Whether § 13H requires proof that the victim "attained age fourteen" as an element | § 13H’s age language distinguishes it from § 13B (under-14 offense) and is not an element the Commonwealth must prove | The statute and jury instructions require proof the victim was ≥14 for § 13H conviction | Age is not an element of § 13H; Commonwealth need not prove victim was ≥14; erroneous instruction does not undo conviction |
| Admissibility of grandmother’s testimony that victim has a learning disability | Testimony was fact-based, within grandmother’s knowledge, and not expert opinion; not Brady material | Testimony was improper lay opinion and undisclosed exculpatory evidence that could have supported expert impeachment | Admission was proper as lay/factual testimony; not exculpatory disclosure; no prejudice shown |
| Ineffective assistance — failure to investigate/call victim’s sister | Counsel had no reason before/at trial to know sister had exculpatory info; post-trial affidavit and recantation undermine value; no prejudice | Sister’s post-trial statements/affidavit showed exculpatory evidence counsel failed to investigate and present | No deficient performance shown; post-trial evidence arose after trial and recanted; no substantial ground of defense established |
| Ineffective assistance — failure to call mother as witness | Counsel interviewed mother; her testimony would not have excluded assaults and would have corroborated some victim testimony; strategic choice | Mother would have impeached victim by showing other people sometimes slept in living room, undermining allegations | Decision not to call mother was not manifestly unreasonable; no deprivation of substantial ground of defense |
Key Cases Cited
- Commonwealth v. Brown, 479 Mass. 600 (statutory interpretation: effectuate legislature's intent)
- Commonwealth v. Muir, 84 Mass. App. Ct. 635 (statutory phrase used to distinguish offenses, not as an element)
- Commonwealth v. Lockwood, 95 Mass. App. Ct. 189 (language distinguishing offenses is not always an element)
- Commonwealth v. Buttimer, 482 Mass. 754 (erroneous jury instruction cannot create elements beyond statute)
- Musacchio v. United States, 136 S. Ct. 709 (elements of charged crime control sufficiency review despite instruction error)
- Commonwealth v. Bonds, 445 Mass. 821 (lay witness with long involvement may testify to observed facts about victim)
- Commonwealth v. Saferian, 366 Mass. 89 (standard for prejudice/substantial ground of defense in ineffective assistance claims)
- Commonwealth v. Denis, 442 Mass. 617 (counsel's duty to investigate measured by reasonableness under Strickland)