58 Mass. App. Ct. 92 | Mass. App. Ct. | 2003
From his convictions of assault with intent to commit rape, second or subsequent offense, assault and battery, and being a habitual criminal, the defendant appeals, claiming that his trial counsel was ineffective and that the evidence was insufficient to support a finding of guilt as to the second or subsequent offense portion of the indictments charging the defendant with assault with intent to commit rape.
1. Ineffective assistance claim. The defendant argues that his trial counsel was ineffective in conceding the defendant’s guilt as to assault and battery in his opening statement and closing argument; in failing to attack effectively the Commonwealth’s evidence identifying the defendant as the perpetrator of the crime; in failing to present or object to certain evidence; and in failing to object to the judge’s instruction on intoxication. In order to establish his claim of ineffective assistance, the defendant must show that there has been serious incompetency, inefficiency or inattention of counsel — behavior falling measurably below that which might be expected from an ordinary fallible lawyer — and that those shortcomings deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant has not done so in this case.
The defendant first contends that his counsel was ineffective because in his opening statement he conceded that the defendant was guilty of “something,” and in his closing argument he conceded the defendant was guilty of assault and battery. The defendant argues that those concessions deprived him of a defense and nullified his presumption of innocence. However, a defendant is not necessarily deprived of a defense when some guilt is conceded. As a tactical decision, counsel may well concede guilt on a less serious offense in an effort to persuade the jury to mitigate punishment by acquitting on the more serious offense. See Commonwealth v. Stoute, 10 Mass. App. Ct. 932, 933 (1980) (concession by defense counsel of guilt on as
The defendant next argues that defense counsel did not make use of all the evidence that could have been used to attack the victim’s identification and that any attempt counsel made to attack the identification was at odds with his concession of identification and nullified the defendant’s defense relating to his claim that he was too intoxicated to possess the necessary intent. Here again, our review of the record indicates that defense counsel’s strategy was to focus on the defendant’s inability to form the specific intent to commit the more serious crimes and to forgo an attack on identification. For the reasons noted, this was not a manifestly unreasonable strategy. Further, we view the thrust of defense counsel’s questions and statements in closing argument relating to the identification of the defendant by the victim as an attack on the witness’s credibility and as not inconsistent with defense counsel’s strategy to focus on the issue of intent.
The defendant also argues that defense counsel’s objection to the admission in evidence of statements made by the victim to the owner of the bar was not forceful enough and that defense counsel erred in failing to object to the victim’s statement to the investigating police officer. Because those statements were made by the victim immediately following the attack while she was still under the stress of the attack and the statements tended to qualify, characterize, and explain the underlying event, the trial judge could properly admit them as spontaneous utterances. Commonwealth v. King, 436 Mass. 252, 254-255 (2002). Accordingly, counsel cannot be faulted either for failing to object, or for not objecting strongly enough. Cf. Commonwealth v. Cohen, 412 Mass. 375, 392 (1992) (where statements were admis
Finally, the defendant claims that his trial counsel was ineffective in failing to object to what he claims was a deficient instruction on intoxication. The instruction was not deficient. The judge instructed the jury as follows:
“Whenever the defendant’s intent must be proved by the Commonwealth, the defendant’s culpability rests upon proof of such intent beyond a reasonable doubt. You should consider all the credible evidence relevant to the defendant’s intent, including any credible evidence of the effect on the defendant of his consumption of alcohol in determining whether the Commonwealth has met its burden of proof.
“More particularly, you may consider any credible evidence of the defendant’s consumption of alcohol in determining whether the defendant actually intended to physically harm [the victim], whether the defendant actually intended to make [the victim] fearful or apprehensive of immediate bodily harm, and whether the defendant actually intended to rape [the victim].”
This instruction comports with the recommended instruction on intoxication of the Supreme Judicial Court. See Commonwealth v. Sires, 413 Mass. 292, 300-301 (1992); Commonwealth v. Cormier, 427 Mass. 446, 452 (1998). No more was required.
In sum, the defendant has not demonstrated that any of his trial counsel’s actions or inactions deprived him of a substantial available defense, and thus his claim of ineffectiveness fails.
2. Second or subsequent offense. The defendant was charged in two indictments with assault with intent to commit rape as a second or subsequent such offense. In one indictment, the predicate offense was a conviction for attempted sexual assault in the State of Nevada on June 12, 1992, and in the other indictment, the predicate offense was a conviction of rape in Hamp-den County on December 20, 1983. The trial judge found the defendant guilty on both indictments and also as a habitual offended and sentenced him to life imprisonment on both indictments. Subsequently, the trial judge vacated one of those
Judgments affirmed.
The defendant also claims that the evidence was insufficient to support a finding of guilt as to 1) the assault with intent to commit rape portion of the indictment and 2) the finding that he is a habitual offender. Because there was adequate proof presented by the Commonwealth, we reject both of those claims, which were submitted in a supplemental brief pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981).
We consider the judge’s vacating of her original sentence and imposition of only one sentence on the indictment charging the defendant with assault with intent to commit rape, second and subsequent offense based on the Nevada conviction, and with being a habitual offender, as dispositive of the defendant’s argument that he was twice put in jeopardy.
There appears to be no crime specifically designated as assault with intent to commit rape under the Nevada statutes. Nevada does, however, designate as a crime battery with the intent to commit sexual assault. See Nev. Rev. Stat. § 200.400 (2002).