Commonwealth v. McCarthyCommonwealth v. McCarthy
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The defendant appeals from his conviction of rape and from the denial of his motion for a new trial. The motion for a new trial was brought by present counsel appointed after trial; he argues that trial counsel had prepared the case inadequately and tried it in a perfunctory manner. Our examination of the entire record before us
It is not disputed, nor can it be, that the victim was raped and badly beaten during the early morning hours of May 11, 1978, in Fort Hill Park in Lowell. The only real question at trial was whether the defendant had committed the acts. Both the victim and the defendant, who testified in his own behalf, agree in large part on the events preceding the attack: the defendant and his friend, Anthony Ducharme, were riding in the defendant’s car when they saw the victim standing outside a bar in Lowell at about 2:15 a.m. They invited her to take a ride with them; she did not know the defendant but she did know Ducharme. She got into the car in the front between the two men, and the three proceeded on their ride. They made a few stops — for gas, to pick up a hitchhiker and drop her off, and for oil. They then drove to the top of Fort Hill Park, an area known as “lover’s lane.” The victim testified that when the defendant tried to kiss her and asked her if she wanted to make a quick $100,
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she left the automobile and proceeded down the hill on foot. The defendant overtook her in his automobile and asked her to get back in the car. She refused and kept walking, and the defendant drove off out of the
The victim made her way to an apartment near the park and asked for help; her sister and brother-in-law were called. Her sister testified that the victim told her, “You know who did this to me . . . Tony, Roseanne’s boyfriend, and John the Reptile.” (The victim had testified that the defendant had told her he was known by this name.) Defense counsel on cross-examination of the victim’s brother-in-law elicited that he also heard the victim say, “It was Tony and a man by the name of John” whom she referred to as “John the Reptile.” Other evidence and details of the proceedings will be discussed in connection with the various contentions raised by present counsel.
1. There is no basis for the defendant’s contention here and at the hearing on the motion for a new trial that trial counsel’s preparation constituted ineffective assistance of counsel. The trial judge, who also heard the motion for a new trial, found that trial counsel “requested and received all police reports and medical records. He conducted two office interviews with the defendant prior to trial and discussed the case with the defendant on several occasions by telephone. Through counsel he also interviewed the defendant’s companion on the night in question .... He also chatted about the case prior to trial on a number of occasions with Sally McDonald, the defendant’s girlfriend, with
Present counsel, at the hearing on the motion for a new trial, did produce two witnesses who were longtime friends of the defendant and would have testified that the defendant had a reputation as “not being a violent and sexually assaultive person and rather ... [as a] gentle person.” Also, they would both have testified that they had never heard him called “John the Reptile.”
The trial judge, in her findings on the motion for a new trial, held “that the evidence of the defendant’s guilt was very strong.” In the circumstances we agree with the trial judge’s assessment that the proposed testimony of the two witnesses would not “have had any likely effect on the jury’s verdict.” Failure to produce it did not “likely deprive[ ] the defendant of an otherwise available substantial ground of defense.”
Commonwealth
v.
Saferian,
366 Mass. at 96. It seems inconceivable that such testimony, “muted and colorless” as it generally is (McCormick, Evidence § 191, at 456 [2d ed. 1972]), would have altered the jury’s decision to believe the victim rather than the defendant. That trial counsel “failed to call an additional witness ... to bolster the defense” does not establish counsel’s ineffectiveness.
Commonwealth
v.
Rondeau,
378 Mass. 408, 413 (1979). Indeed, the introduction of reputation evidence might have
Present counsel also claims that trial counsel should have asked for a continuance further to investigate Ducharme when, to the surprise of trial counsel — and probably to the surprise of Ducharme himself — he was ordered, late in the trial, to testify although he had consistently refused to testify both at the arraignment and at the probable cause hearing. The order of the trial judge and the prosecution’s promise not to prosecute put a different light on the matter, and Ducharme agreed to testify. 3 Trial counsel was thus faced with the dilemma of proceeding or asking for a continuance. He chose to proceed, and we will not fault him in this regard. He had already interviewed Ducharme and may well have made the choice to continue rather than give Ducharme an opportunity to think over his testimony. The decision to go ahead was purely tactical and certainly not “manifestly unreasonable.”
Indeed, trial counsel’s cross-examination indicates that he knew a great deal about Ducharme. He elicited that Ducharme was married and had two small children, which raised the stakes that he had in not being involved in the criminal acts. Trial counsel was also able to elicit testimony that Ducharme’s memory was hazy, that he was intoxicated, that he kept falling asleep in the back seat of the car,
2. Present counsel’s argument that the trial was conducted in a perfunctory manner is baseless. He complains first that no exceptions
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were taken by trial counsel but points specifically to only two occasions on which, he argues, the failure to take exceptions would have prejudiced the defendant. The victim testified that the only name the defendant gave her was “John the Reptile.” Defendant’s present counsel does not argue that this admission by the defendant was inadmissible. Compare
Commonwealth
v.
Clark,
3 Mass. App. Ct. 481, 486 (1975);
Commonwealth
v.
Wood,
7 Mass. App. Ct. 455, 459 (1979), S.C. 380 Mass. 545, 551 (1980). He argues, however, that its repetition in
Moreover, trial counsel apparently took a different view of the significance of the use of the name. His tactic was primarily to emphasize on cross-examination that the victim had told her sister and the police that two men — Ducharme and “John the Reptile” — rather than one had raped her. Marshalling bits and pieces from the testimony,
Thus, we see no substantial risk of a miscarriage of justice or inadequacy of trial counsel in this case. See Commonwealth v. Rondeau, 378 Mass. at 413-414, Commonwealth v. Brown, 9 Mass. App. Ct. 609, 611 (1980). As we analyze the transcript, the case was well tried, and trial counsel did as well as could be expected with the strong case against the defendant.
Judgment affirmed.
Order denying motion for a new trial affirmed.
Notes
The defendant testified that he asked her if she had been standing down there “trying to get picked up.”
Present counsel does not here argue, as he argued on the motion for a new trial, that trial counsel should have called Sally McDonald as a witness . From the findings on the motion it appears that such a tactical decision by trial counsel did not indicate inadequacy. See Commonwealth v. Sellon, 380 Mass. 220, 225-226 (1980).
He was the last witness for the prosecution.
He stated: “My mind draws a blank to what was lying on the ground.”
The defendant did make a number of objections, some of which were allowed. The case was tried in January, 1977, before the effective date of the Massachusetts Rules of Criminal Procedure. See
The victim testified that the car drove out of sight but that she was grabbed from behind only a few minutes later. The area was in complete darkness, and she never saw the face of the attacker.