65 Mass. App. Ct. 112 | Mass. App. Ct. | 2005
In response to the allowance of the Commonwealth’s motion for sequestration, inexperienced defense counsel
The defendant raises several issues in his appeal, only two of which need be addressed: whether counsel was ineffective, and the interrelated issue whether the absence of the defendant during a segment of the testimony of the complainant violated his right to be present at his trial and his right of confrontation as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by art. 12 of the Declaration of Rights of the Massachusetts Constitution.
Facts. The defendant was a nursing supervisor at the Wingate Nursing Home (Wingate) in the Brighton section of Boston. The complainant was an eighteen year old high school student who worked there as a part-time kitchen aide. She alleged that on August 25, 2000, the defendant called her into his office whereupon he touched her breast and her vaginal area.
On the day of trial, prior to the complainant testifying, the prosecutor moved to sequester the witnesses.
During the defendant’s absence, the complainant stated her name, age, and where she attended school. She also testified that she had worked at Wingate “[f]or about two to four months.”
At this point, the judge noticed that the defendant was absent.
The complainant then testified to the inappropriate touching, her reaction thereto — she pushed the defendant and ran to the bus stop to catch her bus — and the people she told about the incident. She further said that she did not go into work the following days, not returning until over a week later, on September 5, 2000, when the defendant again asked her to come to his office.
Needless to say, the defendant’s testimony differed significantly from that of the complainant. As a nursing supervisor at Wingate, he testified that he had to reprimand the complainant on three separate occasions between August 30 and September 6, 2000, for work-related reasons.
The judge found the defendant guilty, but remarked that he was “troubled by the . . . dates and the discrepancies regarding the dates.”
We are concerned primarily with two aspects of counsel’s representation. First, he sent the defendant out of the courtroom in response to an allowed motion to sequester. Suffice it to say, this was a major blunder, which we discuss below. Second, counsel failed to introduce the work records of the complainant that directly contradicted her testimony.
The complainant testified at trial that after the alleged touching on August 25, she did not return to work until September 5, because she did not “feel like going to work.” Her work records demonstrated the opposite, that she worked eight of the ten days between August 25 and September 5. The case was a close one, with the main inculpatory evidence supplied by the complainant. Clearly, in affirming past cases, such evidence has been held sufficient to carry the Commonwealth’s burden. Here, however, counsel had an opportunity to counter testimony with documentary evidence to the contrary, and failed to pursue it. To his credit, counsel did secure the work records of the defendant. Those records indicated that he was not working on
We cannot say with confidence that this evidence would not “have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. at 115. See Commonwealth v. Martin, 427 Mass. 816, 822 (1998) (counsel’s failure to challenge evidence that the victim’s body had the hallucinogen LSD in it deprived the defendant of an otherwise available substantial ground of defense); Commonwealth v. Alvarez, 433 Mass. at 101-102 (proper review of the defendant’s medical records before trial would have shown the extent of the defendant’s mental illness, which could have had a significant impact on the jury’s assessment of the evidence).
The complainant’s work records, if entered in evidence, could have accomplished two results. They could have been used to impeach the complainant’s testimony that she did not return to work for a significant period of time after the alleged incident. In addition, they could have been used to challenge the complainant’s emotional reaction to the alleged touching by showing that her testimony that she did not “feel like going to work” was wholly unsupported by her actions. By failing to introduce this significant piece of evidence at trial, defendant’s counsel was ineffective.
Absence from the courtroom. Bedrock Federal and State constitutional principles ensure a defendant’s right to both presence and confrontation at trial.
Here, the defendant did not absent himself; he left oMy due to counsel’s instructions. What is troubling is that upon his return, no one appeared particularly concerned about a violation of a fundamental constitutional right. Indeed, the testimony continued with nothing said of what had transpired. Given defense counsel’s lack of experience in handling criminal cases, tMs is not surprising. The prosecutor and the judge, however, also stood silent.
A similar siMation occurred in an early Texas case, Sullivan v. State, 90 Tex. Crim. 170 (1921), where a criminal trial resumed after lunch without the presence of the defendant, who had not returned on time. The judge stopped the trial upon realizing the defendant was not present. Upon the defendant’s return a few moments later, “the identical evidence given during Ms absence was reintroduced from [the same] witness.” Id. at 173. The Texas Court of Criminal Appeals held “that the accused was confronted with the witnesses against him and given every opportuMty to cross-examine and preserve any rights due Mm, and that he was present at Ms trial witMn the contemplation of [the Texas] staMte,” id. at 175, mandating the “personal presence of the accused in a felony case at the trial.” Id. at 173.
Generally, “any violation of a constitutional right gives rise
In Commonwealth v. Rios, 412 Mass. 208, 214 (1992),
The Commonwealth urges us to distinguish Commonwealth v. Rios, supra, on the ground that the testimony there bore directly on the question of the defendant’s guilt, while here only pre
First, the testimony of the complainant was not merely introductory. She testified to working for a period of time longer than that which she worked. As the trial strategy was to highlight the discrepancies in her story, this stood as one additional potential falsehood.
Second, and in a more general sense, one practicality of the defendant’s presence is to “communicate orally with his counsel in the course of a witness’s testimony since he may have information which may aid his counsel in examining the witness.” Commonwealth v. Robichaud, 358 Mass. at 303. In addition, “[m]pst believe that in some undefined but real way recollection, veracity, and communication are influenced by face-to-face challenge.” Commonwealth v. Bergstrom, 402 Mass. 534, 542 (1988), quoting from United States v. Benfield, 593 F.2d 815, 821 (8th Cir. 1979).
Conclusion. A case may be made that, standing alone, each of the trial errors was not so prejudicial as to warrant a new trial; that counsel was able to establish the discrepancies of the complainant without offering yet another, albeit more compelling, instance; and that the defendant missed little of the testimony against him. Given the combination of circumstances, though, we believe a new trial is necessary. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985). As we have noted, we are also troubled by the lack of awareness and appreciation that in the face of a violation of a basic constitutional right, neither the judge nor the parties took any ameliorative actions. If, in fact, the matter were given the attention it deserved, in all likelihood either the defendant on the record would have waived any rights he held or, as was done in Sullivan v. State, supra, the complainant would simply have repeated her testimony.
Order denying motion for new trial reversed.
Judgments reversed.
Findings set aside.
Defense counsel had been an attorney since 1989 but was, needless to say, inexperienced in handling criminal trials. The defendant is represented by new counsel on appeal.
The defendant also alleges that (1) poor courtroom acoustics deprived him of his right to confront witnesses against him, to effective assistance of counsel, and to a public trial; (2) inadmissible and unfairly prejudicial opinion testimony and improper fresh complaint testimony deprived him of a fair trial; and (3) the evidence was insufficient to warrant the guilty findings.
It is unclear from the record which witnesses were initially sequestered with the defendant. However, those who eventually testified for the Commonwealth included the complainant, her mother, and Detective Erin Schroeder of the Boston police department. Testifying for the defense, in addition to the defendant, were Cynthia Nwachukwu (the defendant’s wife), Rosemary McLaughlin (the administrator at Wingate), Claudia LeFrance (a nursing assistant at Wingate), and Adler Bemadin (a receptionist at Wingate).
The complainant’s work records, admitted in evidence at the evidentiary hearing on the motion for a new trial, indicate that she was hired on July 31, 2000, and that her last day of work was September 8, 2000. Accordingly, she worked at Wingate for six weeks during the summer of 2000.
The colloquy went as follows:
Judge: “Excuse me. I’m sorry. Wh--where’s the defendant?”
Defense counsel: “I — I thought you wanted — including the defendant, I thought you — ”
Judge: “No; he always has the right to be here.”
Court officer: “I’ll get him.”
The trial judge also noted in his decision on the motion for a new trial that he would not have permitted any further testimony to take place after he noted the defendant’s absence.
The complainant’s work record report, see note 4, supra, indicates otherwise. It shows that she reported to work on August 25, 26, 27, 28, and 30, and September 1, 2, 3, 4, and 5.
For example, the complainant could not remember when she told her mother about the alleged incident; she first told the police detective that the alleged touching occurred on August 26, 2000 (the second contact with the defendant being on August 29), but ten days later told the detective that she had been confused about the dates and changed them to August 25 (inappropriate touching) and September 5 (the next date the defendant called her to his office); she told the administrator at Wingate, Rosemary McLaughlin, that the alleged touching had occurred on Saturday, September 2. Work records and the alibi testimony of the defendant’s wife indicated that the defendant did not work that day.
He testified that his first contact with the complainant was on August 30, when he had to reprimand her for making a lengthy private telephone call during work hours. He said that he again had to reprimand her on September 4, after he had seen her deliver a patient’s food tray to the wrong floor. Concerning her last reprimand, see note 10, infra.
To obtain her mother’s new telephone number, which had recently been changed, the defendant said he contacted the complainant again on September 5 by leaving a message for her with the Wingate receptionist asking her to come to see him at the end of her shift. His last encounter with the complainant was the next day, September 6, when he said he verbally reprimanded her again because he had not yet heard from her mother.
Approximately two years later, represented by new counsel, the defendant filed a motion for a new trial, for which an evidentiary hearing was conducted. Among other things, the defendant’s trial counsel testified that the complainant’s confusion about dates was used as part of his defense strategy. With regard to the defendant’s absence from the courtroom, he said that he told the defendant to leave the courtroom, that in his recollection the defendant was absent for about five minutes, and that the defendant reentered shortly
See Sixth and Fourteenth Amendments to the United States Constitution; art. 12 of the Declaration of Rights of the Massachusetts Constitution. See also Commonwealth v. Bergstrom, 402 Mass. 534, 541-542 (1988) (“Constitutional language more definitively guaranteeing the right to a direct confrontation between witness and accused is difficult to imagine. The plain meaning of assuring a defendant the right ‘to meet the witnesses against him face to
The trial judge addressed the issue in his memorandum of decision on the motion for a new trial and found that the complainant’s answers to questions posed during the defendant’s absence “were all information known to the defense and undisputed.” He then ruled that the defendant’s absence was “harmless error beyond any reasonable doubt.”
We note that cases such as the one before us, in which the defendant is absent from portions of the trial when witnesses testify against him, fortunately are few and far between. More common are cases involving scenarios where the defendant is not present at a sidebar conference or during jury selection.
As no objection , was lodged at trial, there is support for the standard of review being a substantial risk of a miscarriage of justice. See Commonwealth v. Bly, 444 Mass. 640, 648 (2005). See also Commonwealth v. Fowler, 431 Mass. 30, 42 n.20 (2000).
In Commonwealth v. Rios, 412 Mass. at 211, the trial judge permitted a police officer to testify outside of the presence of the defendant in order to keep secret a surveillance location the police intended to continue using. The court reversed the defendant’s conviction, ruling that the Commonwealth failed to overcome the presumptive prejudice of the constitutional violation. Id. at 214.
We recognize that the trial judge was working under poor, if not abominable, courtroom conditions and struggled mightily to overcome them.
In reading the transcript, we note that the complainant never formally identified the defendant in court. As the issue was not raised, we need not consider it.