Commonwealth v. Salinger, May 27, 2010
76 Mass. App. Ct. 776
Assistance of counsel, Evidence, School records, Medical record, Rape.
The defendant was convicted by a Superior Court jury on one count of child rape and five counts of indecent assault and battery on a child under the age of fourteen. In response the defendant filed a motion for a new trial, claiming ineffectiveness of counsel for failing to introduce certain evidence, and also asserted several additional bases for granting a new trial. The trial judge did not hear arguments on all the issues in the defendant’s motion for new trial and ruled that due to the ineffectiveness of the defendant’s counsel, a new trial should be awarded. The Appeals Court vacated the trial court’s grant of a new trial. However, the court remanded the case back to the trial court to consider remaining unaddressed grounds in the defendant’s motion for a new trial.
The Commonwealth filed their notice of appeal one day beyond the thirty day maximum allowed by Mass.R.A.P.4(b), and then six months later filed a motion under Mass.R.A.P.14(b) asking that its late notice of appeal be accepted. The defendant filed a request to dismiss the Commonwealth’s appeal. A single justice of the Appeals court decided to allow the Commonwealth’s appeal because the Commonwealth had shown “good cause” for allowing the late appeal. The Appeals court in reviewing this decision stated that it is within the discretion of the justice reviewing the 14(b) motion to determine whether good cause had been satisfied. The court went on to say that “good cause” and “excusable neglect” are not interchangeable terms in the criminal context because of factors like the need for finality and the public interest in the prosecution of those accused with crimes. The court found that the late notice was properly accepted because it was only one day late, presented a meritorious claim of error, furthered the efficiency of the administration of justice because a decision on appeal might obviate the need for a new trial, and because there was no discernible prejudice to the defendant. The defendant’s request for dismissal of the Commonwealth’s appeal was denied.
Ineffective Assistance of Counsel
The defendant’s first claim in his motion for a new trial was that his counsel was ineffective because defense counsel had failed to use the victim’s school records that had been subpoenaed, and for failing to obtain the victim’s psychological records. The victim in this case was raped or indecently assaulted by the defendant multiple times between the ages of 6 and 12 while the defendant was acting as a babysitter to the victim. Though she never came forward about the abuse for fear that accusing the defendant would tear her family apart, signs of psychological stress arguably resulting from the defendant’s actions were becoming apparent. The defendant began cutting herself, and was diagnosed with depression. It wasn’t until shortly after graduating high school, when she was 18, that she admitted having been a victim of these crimes.
To reverse an order granting or denying a new trial an appellate court must find that the judge’s conclusion was based on a significant error of law or abuse of discretion. Special deference is accorded to a motion judge who was also the trial judge (as was the case here). For a new trial to be granted due to ineffective assistance of counsel the defendant must show, “behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” and that it “likely deprived the defendant of an otherwise available, substantial grounds for defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The Appeals Court found that the failure to use the school records did not constitute ineffective assistance of counsel because the court found the records would not have helped the defendant in a significant way, finding that at best it was “double-edged proof” because it had the potential to do more harm than good for the defendant’s case. While the letter from a guidance counselor would have shown that the victim’s freshmen year was “particularly difficult”, it also favorably recommended the victim for college and described her as the quintessential scholar.
The court also found that the defense counsel’s failure to obtain the psychological records of the victim and introduce them as evidence in trial should not have been determined to be grounds for a new trial. The court noted that the trial judge did not read the psychological reports, and merely accepted the defense counsel’s allegations regarding what would have been shown had they been used. The Appeals court decided, after actually reviewing the records that they are not exculpatory and are actually inculpatory because the records memorialize the fact that the victim told her psychiatrist about the abuse she had suffered between the ages of 6 and 12 at the hands of her babysitter. The court reasoned that a lawyer in the shoes of defendant’s counsel may very well have chosen not to introduce this evidence, and there were no substantial grounds for defense lost by counsel’s decision not to use the psychiatric records.
76 Mass. App. Ct. 776
Assistance of counsel, Evidence, School records, Medical record, Rape.
The defendant was convicted by a Superior Court jury on one count of child rape and five counts of indecent assault and battery on a child under the age of fourteen. In response the defendant filed a motion for a new trial, claiming ineffectiveness of counsel for failing to introduce certain evidence, and also asserted several additional bases for granting a new trial. The trial judge did not hear arguments on all the issues in the defendant’s motion for new trial and ruled that due to the ineffectiveness of the defendant’s counsel, a new trial should be awarded. The Appeals Court vacated the trial court’s grant of a new trial. However, the court remanded the case back to the trial court to consider remaining unaddressed grounds in the defendant’s motion for a new trial.
The Commonwealth filed their notice of appeal one day beyond the thirty day maximum allowed by Mass.R.A.P.4(b), and then six months later filed a motion under Mass.R.A.P.14(b) asking that its late notice of appeal be accepted. The defendant filed a request to dismiss the Commonwealth’s appeal. A single justice of the Appeals court decided to allow the Commonwealth’s appeal because the Commonwealth had shown “good cause” for allowing the late appeal. The Appeals court in reviewing this decision stated that it is within the discretion of the justice reviewing the 14(b) motion to determine whether good cause had been satisfied. The court went on to say that “good cause” and “excusable neglect” are not interchangeable terms in the criminal context because of factors like the need for finality and the public interest in the prosecution of those accused with crimes. The court found that the late notice was properly accepted because it was only one day late, presented a meritorious claim of error, furthered the efficiency of the administration of justice because a decision on appeal might obviate the need for a new trial, and because there was no discernible prejudice to the defendant. The defendant’s request for dismissal of the Commonwealth’s appeal was denied.
Ineffective Assistance of Counsel
The defendant’s first claim in his motion for a new trial was that his counsel was ineffective because defense counsel had failed to use the victim’s school records that had been subpoenaed, and for failing to obtain the victim’s psychological records. The victim in this case was raped or indecently assaulted by the defendant multiple times between the ages of 6 and 12 while the defendant was acting as a babysitter to the victim. Though she never came forward about the abuse for fear that accusing the defendant would tear her family apart, signs of psychological stress arguably resulting from the defendant’s actions were becoming apparent. The defendant began cutting herself, and was diagnosed with depression. It wasn’t until shortly after graduating high school, when she was 18, that she admitted having been a victim of these crimes.
To reverse an order granting or denying a new trial an appellate court must find that the judge’s conclusion was based on a significant error of law or abuse of discretion. Special deference is accorded to a motion judge who was also the trial judge (as was the case here). For a new trial to be granted due to ineffective assistance of counsel the defendant must show, “behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” and that it “likely deprived the defendant of an otherwise available, substantial grounds for defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The Appeals Court found that the failure to use the school records did not constitute ineffective assistance of counsel because the court found the records would not have helped the defendant in a significant way, finding that at best it was “double-edged proof” because it had the potential to do more harm than good for the defendant’s case. While the letter from a guidance counselor would have shown that the victim’s freshmen year was “particularly difficult”, it also favorably recommended the victim for college and described her as the quintessential scholar.
The court also found that the defense counsel’s failure to obtain the psychological records of the victim and introduce them as evidence in trial should not have been determined to be grounds for a new trial. The court noted that the trial judge did not read the psychological reports, and merely accepted the defense counsel’s allegations regarding what would have been shown had they been used. The Appeals court decided, after actually reviewing the records that they are not exculpatory and are actually inculpatory because the records memorialize the fact that the victim told her psychiatrist about the abuse she had suffered between the ages of 6 and 12 at the hands of her babysitter. The court reasoned that a lawyer in the shoes of defendant’s counsel may very well have chosen not to introduce this evidence, and there were no substantial grounds for defense lost by counsel’s decision not to use the psychiatric records.
