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
22-P-444
COMMONWEALTH
vs.
DANIEL LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Daniel Lopez, brings this second appeal of
his judgments of conviction under G. L. c. 265, §§ 13B and 23.
In the first appeal, a panel of this court affirmed the
convictions on direct review but vacated an order denying the
defendant's motion for a new trial and remanded the motion for
an evidentiary hearing. Commonwealth v. Lopez, 96 Mass. App.
Ct. 1111 (2019). The issue was that in the absence of an
affidavit from trial counsel (which appellate counsel sought but
was refused), there was "no basis in the record to assign
strategic purpose as the basis for trial counsel's decision not
to engage or call an expert" to prepare his defense in a case
where multiple children alleged sexual abuse. Id. Pursuant to our remand, a judge 1 held an evidentiary hearing at which trial
counsel and three expert witnesses testified. On the weight of
the testimony, the motion judge found that trial counsel's
strategic decisions not to call or consult an expert witness
were not manifestly unreasonable and did not amount to
ineffective assistance. Having now reviewed the motion judge's
additional findings and rulings, we affirm. We supply relevant
and necessary facts, which are based on the motion judge's
findings.
Discussion. To succeed on a claim of ineffective
assistance of counsel, a defendant must show both that trial
counsel's behavior fell "measurably below that which might be
expected from an ordinary fallible lawyer" and that such conduct
"likely deprived the defendant of an otherwise available,
substantial ground of defence." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). Where the defendant's claim is based on a
strategic trial decision, the standard is whether that decision
was "manifestly unreasonable" when made. Commonwealth v.
Kolenovic, 471 Mass. 664, 674 (2015). We review the motion
judge's decision for an error of law or abuse of discretion.
Commonwealth v. Brescia, 471 Mass. 381, 387 (2015). "When, as
here, the motion judge did not preside at trial, we defer to
1 The trial judge had retired so the motion was heard by a different judge.
2 that judge's assessment of the credibility of witnesses at the
hearing on the new trial motion, but we regard ourselves in as
good a position as the motion judge to assess the trial record."
Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
The defendant argues that the failure to call or even
consult an expert witness in a child sexual abuse case was, by
itself, ineffective assistance of counsel because it deprived
the defendant of substantial defenses. Namely, the defendant
contends that an expert witness would have been able to assist
the jury in understanding how and why children unknowingly make
false sexual abuse allegations, been essential in drafting
motions in limine, and helped trial counsel prepare a more
effective cross-examination of the children that would have
drawn out red flags and inconsistencies in their testimony.
Without this guidance, the defendant argues that trial counsel
was unable to provide a meaningful defense.
On this record, after an evidentiary hearing, we cannot say
that trial counsel's behavior fell measurably below that of an
"ordinary fallible lawyer." Saferian, 366 Mass. at 96. While
the Supreme Judicial Court has held that a failure to call on
expert help is ineffective assistance in cases involving the
causes of deaths of infants, 2 such a standard does not apply to
2 See Commonwealth v. Epps, 474 Mass. 743, 767 (2016) (trial counsel's failure to consult and call expert to rebut
3 the credibility of alleged victims' disclosures in child sexual
abuse cases. See Commonwealth v. Andrade, 98 Mass. App. Ct.
395, 399 (2020) (trial counsel's decision not to call expert
where such action would tip off Commonwealth to defense theory
was not manifestly unreasonable); Commonwealth v. Aspen, 85
Mass. App. Ct. 278, 280-281 (2014) (trial counsel's decision not
to call expert witness not manifestly unreasonable where it
would not have "added materially to the defendant's case").
Here, the motion judge credited trial counsel's testimony
at the evidentiary hearing that his primary trial strategy was
"implausibility," that is, that the children's accusations could
not have occurred the way they said they had. To bolster this
strategy, trial counsel avoided the admission of forensic
interviews where the children were younger and appeared
sympathetic and compelling, and the "piling on" of evidence
whereby the jury would hear the children accusing the defendant
multiple times. We cannot say that this was an unsound theory
of defense. Indeed, in a case that relied exclusively on the
testimony of the children, the defendant's only available
strategy was to undermine their credibility. While calling an
Commonwealth's expert medical testimony deprived defendant of only available defense); Commonwealth v. Millien, 474 Mass. 417, 430 (2016) (trial counsel's failure to file motion for funds for expert where client was indigent constitutes ineffective assistance).
4 expert witness may have strengthened the presentation of that
theory, it may also have cut against it, such as by opening the
door to admission of the video recordings of the forensic
interviews. 3 Further, in this case, the use of an expert witness
would not have changed the theory of the defense that trial
counsel ultimately pursued. Though it is possible that expert
testimony may have made that strategy more robust and effective,
it cannot be said that the defendant was deprived wholesale of a
substantial defense. Compare Commonwealth v. Epps, 474 Mass.
743, 767 (2016) (ineffective assistance where trial counsel did
not pursue third-party culprit defense and failed to rebut
expert medical testimony with evidence that child's injuries may
have been accidental).
Further, the motion judge did not abuse his discretion in
finding that trial counsel's decision not to consult with an
expert was not ineffective assistance. We do not require that
trial counsel "descend into every rabbit hole," Commonwealth v.
Tavares, 491 Mass. 362, 366 (2023), only that they make
"reasonable investigations" and "reasonable decisions." Id.,
quoting Strickland v. Washington, 466 U.S. 668
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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
22-P-444
COMMONWEALTH
vs.
DANIEL LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Daniel Lopez, brings this second appeal of
his judgments of conviction under G. L. c. 265, §§ 13B and 23.
In the first appeal, a panel of this court affirmed the
convictions on direct review but vacated an order denying the
defendant's motion for a new trial and remanded the motion for
an evidentiary hearing. Commonwealth v. Lopez, 96 Mass. App.
Ct. 1111 (2019). The issue was that in the absence of an
affidavit from trial counsel (which appellate counsel sought but
was refused), there was "no basis in the record to assign
strategic purpose as the basis for trial counsel's decision not
to engage or call an expert" to prepare his defense in a case
where multiple children alleged sexual abuse. Id. Pursuant to our remand, a judge 1 held an evidentiary hearing at which trial
counsel and three expert witnesses testified. On the weight of
the testimony, the motion judge found that trial counsel's
strategic decisions not to call or consult an expert witness
were not manifestly unreasonable and did not amount to
ineffective assistance. Having now reviewed the motion judge's
additional findings and rulings, we affirm. We supply relevant
and necessary facts, which are based on the motion judge's
findings.
Discussion. To succeed on a claim of ineffective
assistance of counsel, a defendant must show both that trial
counsel's behavior fell "measurably below that which might be
expected from an ordinary fallible lawyer" and that such conduct
"likely deprived the defendant of an otherwise available,
substantial ground of defence." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). Where the defendant's claim is based on a
strategic trial decision, the standard is whether that decision
was "manifestly unreasonable" when made. Commonwealth v.
Kolenovic, 471 Mass. 664, 674 (2015). We review the motion
judge's decision for an error of law or abuse of discretion.
Commonwealth v. Brescia, 471 Mass. 381, 387 (2015). "When, as
here, the motion judge did not preside at trial, we defer to
1 The trial judge had retired so the motion was heard by a different judge.
2 that judge's assessment of the credibility of witnesses at the
hearing on the new trial motion, but we regard ourselves in as
good a position as the motion judge to assess the trial record."
Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
The defendant argues that the failure to call or even
consult an expert witness in a child sexual abuse case was, by
itself, ineffective assistance of counsel because it deprived
the defendant of substantial defenses. Namely, the defendant
contends that an expert witness would have been able to assist
the jury in understanding how and why children unknowingly make
false sexual abuse allegations, been essential in drafting
motions in limine, and helped trial counsel prepare a more
effective cross-examination of the children that would have
drawn out red flags and inconsistencies in their testimony.
Without this guidance, the defendant argues that trial counsel
was unable to provide a meaningful defense.
On this record, after an evidentiary hearing, we cannot say
that trial counsel's behavior fell measurably below that of an
"ordinary fallible lawyer." Saferian, 366 Mass. at 96. While
the Supreme Judicial Court has held that a failure to call on
expert help is ineffective assistance in cases involving the
causes of deaths of infants, 2 such a standard does not apply to
2 See Commonwealth v. Epps, 474 Mass. 743, 767 (2016) (trial counsel's failure to consult and call expert to rebut
3 the credibility of alleged victims' disclosures in child sexual
abuse cases. See Commonwealth v. Andrade, 98 Mass. App. Ct.
395, 399 (2020) (trial counsel's decision not to call expert
where such action would tip off Commonwealth to defense theory
was not manifestly unreasonable); Commonwealth v. Aspen, 85
Mass. App. Ct. 278, 280-281 (2014) (trial counsel's decision not
to call expert witness not manifestly unreasonable where it
would not have "added materially to the defendant's case").
Here, the motion judge credited trial counsel's testimony
at the evidentiary hearing that his primary trial strategy was
"implausibility," that is, that the children's accusations could
not have occurred the way they said they had. To bolster this
strategy, trial counsel avoided the admission of forensic
interviews where the children were younger and appeared
sympathetic and compelling, and the "piling on" of evidence
whereby the jury would hear the children accusing the defendant
multiple times. We cannot say that this was an unsound theory
of defense. Indeed, in a case that relied exclusively on the
testimony of the children, the defendant's only available
strategy was to undermine their credibility. While calling an
Commonwealth's expert medical testimony deprived defendant of only available defense); Commonwealth v. Millien, 474 Mass. 417, 430 (2016) (trial counsel's failure to file motion for funds for expert where client was indigent constitutes ineffective assistance).
4 expert witness may have strengthened the presentation of that
theory, it may also have cut against it, such as by opening the
door to admission of the video recordings of the forensic
interviews. 3 Further, in this case, the use of an expert witness
would not have changed the theory of the defense that trial
counsel ultimately pursued. Though it is possible that expert
testimony may have made that strategy more robust and effective,
it cannot be said that the defendant was deprived wholesale of a
substantial defense. Compare Commonwealth v. Epps, 474 Mass.
743, 767 (2016) (ineffective assistance where trial counsel did
not pursue third-party culprit defense and failed to rebut
expert medical testimony with evidence that child's injuries may
have been accidental).
Further, the motion judge did not abuse his discretion in
finding that trial counsel's decision not to consult with an
expert was not ineffective assistance. We do not require that
trial counsel "descend into every rabbit hole," Commonwealth v.
Tavares, 491 Mass. 362, 366 (2023), only that they make
"reasonable investigations" and "reasonable decisions." Id.,
quoting Strickland v. Washington, 466 U.S. 668, 691 (1984).
Here, trial counsel read scientific materials, consulted with
3 The interviews were excluded pursuant to the first complaint doctrine in order to avoid repeating the narrative of abuse and prejudicing the defendant. See Commonwealth v. Aviles, 461 Mass. 60, 67-70 (2011).
5 experienced attorneys, diligently reviewed the case, and
prepared appropriately for trial. Though consultation with an
expert could have aided trial counsel in some respects, it was
not required to prepare effectively for trial. Moreover,
failing to consult with an expert witness did not deprive the
defendant of a substantial defense; at worst, it minimized the
efficacy of an otherwise sound strategy. 4
Order dated February 14, 2022, denying motion for new trial, affirmed.
By the Court (Henry, Grant & Brennan, JJ. 5),
Assistant Clerk
Entered: January 16, 2024.
4 The defendant's reliance on the determination in Commonwealth v. Baran, 74 Mass. App. Ct. 256, 278 (2009), that trial counsel's failures to call or investigate the use of expert witnesses in a child sexual abuse case "standing alone" were enough to show ineffective assistance, is unavailing. It is true that failing to rebut expert testimony presented by the Commonwealth may be ineffective assistance. Id. See Commonwealth v. Jacobs, 488 Mass. 597, 606 (2021). However, in Baran, supra at 267, the Commonwealth presented expert medical and psychological testimony at trial and defense counsel neither presented expert rebuttal testimony nor investigated whether to use experts or investigators. In so doing, trial counsel ceded a "decisive" advantage and therefore deprived the defendant of his only likely defense. Id. at 277. Here, however, the Commonwealth did not offer an expert witness, in part because the defendant's trial counsel affirmatively considered whether to involve expert assistance and then made strategic choices not to hire or consult an expert. 5 The panelists are listed in order of seniority.