NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-468
COMMONWEALTH
vs.
CHRISTIAN D. BARRETO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury found the defendant guilty of one
count of indecent assault and battery on a child under the age
of fourteen.1 Following his direct appeal, a panel of this court
affirmed the defendant's conviction. See Commonwealth v.
Barreto, 95 Mass. App. Ct. 1112 (2019). Thereafter, the
defendant filed a motion for a new trial, claiming, inter alia,
that his trial counsel was constitutionally ineffective. The
motion judge, who was also the trial judge, denied the motion.
The defendant appealed. We affirm.
1The defendant was acquitted on a separate count of the same charge. Discussion. We review a judge's ruling on a motion for a
new trial "only to determine whether there has been a
significant error of law or other abuse of discretion."
Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting
Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). When the
basis for the motion for a new trial is a claim of ineffective
assistance of counsel, "the defendant must show that the
behavior of counsel fell measurably below that of an ordinary,
fallible lawyer and that such failing 'likely deprived the
defendant of an otherwise available, substantial ground of
defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255
(2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96
(1974).
When the basis of a claim for ineffective assistance is a
strategic choice by counsel, the defendant must demonstrate that
the "strategic choice was 'manifestly unreasonable.'"
Commonwealth v. Hudson, 446 Mass. 709, 716 (2006). Moreover,
"[i]n cases where tactical or strategic decisions of the
defendant's counsel are at issue, we conduct our review with
some deference to avoid characterizing as unreasonable a defense
that was merely unsuccessful." Commonwealth v. Kolenovic, 471
Mass. 664, 673 (2015), quoting Commonwealth v. Valentin, 470
Mass. 186, 190 (2014).
2 "On review, '[a] judge's findings of fact after an
evidentiary hearing on a motion for a new trial will be accepted
if supported by the record.'" Kolenovic, 471 Mass. at 672,
quoting Commonwealth v. Walker, 443 Mass. 213, 224 (2005). We
grant "special deference to the rulings of a motion judge who
was also the trial judge." Commonwealth v. Alcide, 472 Mass.
150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469,
488 (2014).
On appeal, the defendant argues that trial counsel was
constitutionally ineffective for three reasons, and we address
each in turn. First, he contends that counsel failed to object
to impermissible portions of the first complaint testimony
offered at trial. See Commonwealth v. King, 445 Mass. 217, 242-
243 (2005), cert. denied, 546 U.S. 1216 (2006) (describing first
complaint doctrine). During the trial, the victim's mother
testified as the first complaint witness and described the
circumstances under which the victim informed her that she had
been assaulted by the defendant. The witness testified that, in
2011, her daughter told her that she no longer wanted to go to
the defendant's home. When she asked why, the victim told her
that the defendant reached under her shirt while he was tickling
her. When asked by the prosecutor what she did in response to
receiving that information, the witness further testified that
she felt upset by this information, trusted the victim, stopped
3 sending the victim to the defendant's house, and resolved to
confront the defendant about what had happened.
We are unpersuaded that trial counsel's decision not to
object to this testimony was manifestly unreasonable. As the
defendant concedes, a central factor at trial was the
credibility of the witnesses, as there was no physical evidence
of the crime. After the witness testified about trusting her
daughter and her strong feelings with respect to the abuse, the
defendant's trial counsel proceeded to attempt to impeach the
witness with questioning related to a trip to Brazil; the
witness did not attend this trip, but did permit the victim to
travel accompanied by the defendant and his family. This line
of cross-examination emphasized the disparity between the
witness's strong feelings of belief about the alleged assault
and her willingness to allow the victim to travel with the
defendant unescorted thereafter. Such an effort at impeachment
represented a sound trial strategy, and we discern no error on
the part of the judge in denying the motion for a new trial on
this basis.2 See Commonwealth v. McCoy, 456 Mass. 838, 853
2 For the same reasons, trial counsel's decision not to object when the prosecutor emphasized the witness's emotional reaction to the complaint during her closing argument was not manifestly unreasonable. See Kolenovic, 471 Mass. at 676 ("we see no basis to fault counsel for elevating his concern for a viable legal defense over a possible alternative approach likely fraught with difficulty").
4 (2010) ("because the testimony of the witnesses inured to the
defendant's benefit, it is reasonable to infer that defense
counsel's failure to object was a tactical decision"). See also
Hudson, 446 Mass. at 716.
Second, the defendant claims that trial counsel was
ineffective for showing the jury a twenty-two minute recording
of the victim's Sexual Assault Intervention Network (SAIN)
interview. During the evidentiary hearing on the defendant's
motion for a new trial, counsel testified and informed the judge
that he played the video in order to highlight inconsistencies
between the victim's presentation in the recording and her
testimony and demeanor at trial. In his closing argument, trial
counsel highlighted this contrast and suggested that the
contrast should cause the jury to discredit the victim's
allegations. Accordingly, we are unpersuaded that presenting
the SAIN interview to the jury constituted ineffective
assistance of counsel for much the same reasons as we have
previously discussed. See McCoy, 456 Mass. at 853.
Strategically making use of the SAIN interview in an effort to
impeach the Commonwealth's primary witness was a reasonable
trial strategy. As such, there was no error in the judge's
rejection of the argument that such an approach was manifestly
unreasonable. See Hudson, 446 Mass. at 716. A trial strategy
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-468
COMMONWEALTH
vs.
CHRISTIAN D. BARRETO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury found the defendant guilty of one
count of indecent assault and battery on a child under the age
of fourteen.1 Following his direct appeal, a panel of this court
affirmed the defendant's conviction. See Commonwealth v.
Barreto, 95 Mass. App. Ct. 1112 (2019). Thereafter, the
defendant filed a motion for a new trial, claiming, inter alia,
that his trial counsel was constitutionally ineffective. The
motion judge, who was also the trial judge, denied the motion.
The defendant appealed. We affirm.
1The defendant was acquitted on a separate count of the same charge. Discussion. We review a judge's ruling on a motion for a
new trial "only to determine whether there has been a
significant error of law or other abuse of discretion."
Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting
Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). When the
basis for the motion for a new trial is a claim of ineffective
assistance of counsel, "the defendant must show that the
behavior of counsel fell measurably below that of an ordinary,
fallible lawyer and that such failing 'likely deprived the
defendant of an otherwise available, substantial ground of
defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255
(2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96
(1974).
When the basis of a claim for ineffective assistance is a
strategic choice by counsel, the defendant must demonstrate that
the "strategic choice was 'manifestly unreasonable.'"
Commonwealth v. Hudson, 446 Mass. 709, 716 (2006). Moreover,
"[i]n cases where tactical or strategic decisions of the
defendant's counsel are at issue, we conduct our review with
some deference to avoid characterizing as unreasonable a defense
that was merely unsuccessful." Commonwealth v. Kolenovic, 471
Mass. 664, 673 (2015), quoting Commonwealth v. Valentin, 470
Mass. 186, 190 (2014).
2 "On review, '[a] judge's findings of fact after an
evidentiary hearing on a motion for a new trial will be accepted
if supported by the record.'" Kolenovic, 471 Mass. at 672,
quoting Commonwealth v. Walker, 443 Mass. 213, 224 (2005). We
grant "special deference to the rulings of a motion judge who
was also the trial judge." Commonwealth v. Alcide, 472 Mass.
150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469,
488 (2014).
On appeal, the defendant argues that trial counsel was
constitutionally ineffective for three reasons, and we address
each in turn. First, he contends that counsel failed to object
to impermissible portions of the first complaint testimony
offered at trial. See Commonwealth v. King, 445 Mass. 217, 242-
243 (2005), cert. denied, 546 U.S. 1216 (2006) (describing first
complaint doctrine). During the trial, the victim's mother
testified as the first complaint witness and described the
circumstances under which the victim informed her that she had
been assaulted by the defendant. The witness testified that, in
2011, her daughter told her that she no longer wanted to go to
the defendant's home. When she asked why, the victim told her
that the defendant reached under her shirt while he was tickling
her. When asked by the prosecutor what she did in response to
receiving that information, the witness further testified that
she felt upset by this information, trusted the victim, stopped
3 sending the victim to the defendant's house, and resolved to
confront the defendant about what had happened.
We are unpersuaded that trial counsel's decision not to
object to this testimony was manifestly unreasonable. As the
defendant concedes, a central factor at trial was the
credibility of the witnesses, as there was no physical evidence
of the crime. After the witness testified about trusting her
daughter and her strong feelings with respect to the abuse, the
defendant's trial counsel proceeded to attempt to impeach the
witness with questioning related to a trip to Brazil; the
witness did not attend this trip, but did permit the victim to
travel accompanied by the defendant and his family. This line
of cross-examination emphasized the disparity between the
witness's strong feelings of belief about the alleged assault
and her willingness to allow the victim to travel with the
defendant unescorted thereafter. Such an effort at impeachment
represented a sound trial strategy, and we discern no error on
the part of the judge in denying the motion for a new trial on
this basis.2 See Commonwealth v. McCoy, 456 Mass. 838, 853
2 For the same reasons, trial counsel's decision not to object when the prosecutor emphasized the witness's emotional reaction to the complaint during her closing argument was not manifestly unreasonable. See Kolenovic, 471 Mass. at 676 ("we see no basis to fault counsel for elevating his concern for a viable legal defense over a possible alternative approach likely fraught with difficulty").
4 (2010) ("because the testimony of the witnesses inured to the
defendant's benefit, it is reasonable to infer that defense
counsel's failure to object was a tactical decision"). See also
Hudson, 446 Mass. at 716.
Second, the defendant claims that trial counsel was
ineffective for showing the jury a twenty-two minute recording
of the victim's Sexual Assault Intervention Network (SAIN)
interview. During the evidentiary hearing on the defendant's
motion for a new trial, counsel testified and informed the judge
that he played the video in order to highlight inconsistencies
between the victim's presentation in the recording and her
testimony and demeanor at trial. In his closing argument, trial
counsel highlighted this contrast and suggested that the
contrast should cause the jury to discredit the victim's
allegations. Accordingly, we are unpersuaded that presenting
the SAIN interview to the jury constituted ineffective
assistance of counsel for much the same reasons as we have
previously discussed. See McCoy, 456 Mass. at 853.
Strategically making use of the SAIN interview in an effort to
impeach the Commonwealth's primary witness was a reasonable
trial strategy. As such, there was no error in the judge's
rejection of the argument that such an approach was manifestly
unreasonable. See Hudson, 446 Mass. at 716. A trial strategy
5 cannot be deemed manifestly unreasonable merely because it is
unsuccessful. See Kolenovic, 471 Mass. at 673.
Finally, the defendant claims that trial counsel was
unreasonable for failing to object to testimony elicited by the
Commonwealth that, subsequent to the victim's first disclosure
made to her mother, she disclosed the abuse in greater detail to
her mother and the wife of the defendant several years later.
The defendant argues that trial counsel should have objected to
the admission of this testimony because it fell outside the
scope of the first complaint rule. As we have discussed supra,
however, where trial counsel sought to highlight contradictions
between the various claims that the victim made to her mother at
various points in time,3 we cannot conclude that declining to
object to testimony that helps accentuate that contrast was
manifestly unreasonable. See McCoy, 456 Mass. at 853.
Having concluded that the defendant's trial counsel was not
ineffective for any of the reasons asserted, we need not reach
3 During closing arguments, trial counsel suggested that "there may or may not have been horse playing around and that then morphed into five years later an accusation of inappropriate touching."
6 the merits of his claims with respect to whether such alleged
errors caused him prejudice.4,5
Order denying motion for new trial affirmed.
By the Court (Meade, Blake & Desmond, JJ.6),
Clerk
Entered: August 13, 2024.
4 The defendant further raises an argument that the trial judge erred by failing to, sua sponte, give a limiting instruction to the jury prior to testimony by the victim describing the first complaint. The facts supporting this argument were known to the defendant at the time of his direct appeal, and it is accordingly waived. See Fogarty v. Commonwealth, 406 Mass. 103, 107 (1989).
5 The defendant also alludes to ineffective assistance of counsel with respect to appellate counsel during his direct appeal because she failed to raise the issue of ineffective assistance at that time. Appellate counsel testified at the evidentiary hearing for the defendant's motion for a new trial and explained that the defendant was deeply distraught at being incarcerated. As a result, rather than suffer any further delay, the defendant insisted that she proceed with the appeal expeditiously, in lieu of taking the time to file a motion for a new trial grounded in a claim of ineffective assistance of counsel. The judge credited her testimony, and we see no reason to overturn his decision on these grounds.
6 The panelists are listed in order of seniority.