Commonwealth v. Christopher Pike.

• Court: Massachusetts Appeals Court
• Decided: April 4, 2024
• Docket: 23-P-0513
• Status: Unpublished

Opinion

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-513

COMMONWEALTH

vs.

CHRISTOPHER PIKE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Christopher Pike, was convicted of rape of a

child, aggravated by a ten-year age differential, in violation

of G. L. c. 265, § 23A; indecent assault and battery on a child,

in violation of G. L. c. 265, § 13B; accosting or annoying

another person, in violation of G. L. c. 272, § 53; and

furnishing liquor to a person under twenty-one (two

indictments), in violation of G. L. c. 138, § 34. On direct

appeal, the defendant argues that defense counsel was

ineffective and that the prosecutor's closing argument was

improper. We affirm.

1. Ineffective assistance. The defendant shared a home

with the victim, who was thirteen years old at the time of the

crimes; the victim's mother, who was his romantic partner; and

their younger daughters, the victim's sisters and stepsisters. The defendant argues that his trial attorneys provided

ineffective assistance of counsel because they elected to call

the victim's mother as a witness on the defendant's behalf, a

strategic decision that, in hindsight, was more harmful than

beneficial to his case.

The defendant raises this claim for the first time on

direct appeal without having filed a motion for new trial.

Raising an ineffective assistance claim in this manner is

disfavored. See Commonwealth v. Zinser, 446 Mass. 807, 810-811

(2006). "[A]n ineffective assistance of counsel challenge made

on the trial record alone is the weakest form of such a

challenge because it is bereft of any explanation by trial

counsel for his actions . . . ." Commonwealth v. Peloquin, 437

Mass. 204, 210 n.5 (2002). A narrow exception permits the

appellate court to decide ineffective assistance claims "when

the factual basis of the claim appears indisputably on the trial

record." Zinser, supra at 811, quoting Commonwealth v.

Adamides, 37 Mass. App. Ct. 339, 344 (1994).

It is also well established that "'the distorting effects

of hindsight' must be avoided in evaluating a claim made after a

trial in which attorney's defense strategy was proved

unsuccessful." Commonwealth v. Valentin, 470 Mass. 186, 189

(2014), quoting Strickland v. Washington, 466 U.S. 668, 689

(1984). Rather, we must evaluate whether it is apparent from

2 the record before us that, at the time of the decision to call

the mother as a witness, "an ordinary fallible lawyer" would not

have done so. Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). The record, however, provides no basis whatsoever to

evaluate the wisdom of counsel's decision. In the absence of

affidavits or evidence developed in connection with a new trial

motion, we do not know what factors counsel considered in

deciding to call the mother as a witness, what counsel hoped to

accomplish, whether counsel interviewed the mother before making

the decision, what she might have told counsel during any

interviews, what other preparation counsel might have done, and

whether the mother's testimony at trial differed from what

defense counsel reasonably expected. The record does show that

the Commonwealth chose not to call the mother as a witness in

its case-in-chief, which inferentially provides a basis for

thinking that her testimony might have been expected to help the

defense. Simply put, the trial record does not indisputably

show ineffective assistance of counsel.1

1 The mother's testimony on cross-examination to the effect that there was an unspecified order in place requiring the defendant's visits with the couple's five year old daughter to be supervised was not admitted in error and did not create a substantial risk of a miscarriage of justice. On direct examination, the defendant elicited testimony from the mother implying that she and the Probate Court permitted unsupervised sleepovers. The mother's testimony that the visits were supposed to be supervised was permissibly admitted to clarify

3 2. Closing argument. The defendant argues for the first

time on appeal that the prosecutor made an impermissible attempt

to evoke the jurors' sympathy and emotions by arguing that the

victim lost certain benefits -- such as living with her extended

family, elaborate vacations and birthday parties, a better

school situation, and a private swimming pool -- by coming

forward with allegations against the defendant.2

The argument was not improper. In his summation, defense

counsel argued that the victim lied about the defendant sexually

abusing her because she hated him and wanted to prevent her

mother from marrying him -- and that "[i]t worked." In response

to the defendant's argument as to what the victim had to gain

from making up allegations against him, the prosecutor countered

that she had much to lose. "A prosecutor is entitled to respond

to an argument made by the defense at closing." Commonwealth v.

the false impression created by the defendant's questioning on direct.

2 The defendant did not make this objection at trial. Counsel's objection to "all of it," that is, everything the prosecutor said in closing, was not sufficient to preserve the issue. "The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence which has no place in the trial." Commonwealth v. Lenane, 80 Mass. App. Ct. 14, 19 (2011), quoting Abraham v. Woburn, 383 Mass. 724, 726 n.1 (1981). The defendant's objection did not give the judge this opportunity. Because we discern no error, however, the fact that we review under the substantial risk of miscarriage of justice standard rather than the prejudicial error standard makes no difference here.

4 Mason, 485 Mass. 520, 539 (2020). This prosecutor's argument

was a fair, evidence-based response to the defendant's argument,

"made for reasons other than to evoke sympathy or emotion."

Commonwealth v. Hall, 66 Mass. App. Ct. 390, 397 (2006). This

line of argument simply does not equate with "luxuriating in the

ghastliness of the crime and the suffering of the victim."

Commonwealth v. McLeod, 30 Mass. App. Ct. 536, 538-539 (1991).

Judgments affirmed.

By the Court (Vuono, Massing & Toone, JJ.3),

Assistant Clerk

Entered: April 4, 2024.

3 The panelists are listed in order of seniority.