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-932
COMMONWEALTH
vs.
DAVID FLAVELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court in 2010, the
defendant, David Flavell, was convicted of assault with intent
to rape, second and subsequent offense, in violation of G. L.
c. 265, § 24, as well as three other crimes arising from the
same incident. The defendant's direct appeal from these
convictions was dismissed with prejudice at the defendant's
request. In 2021, the defendant filed a motion for a new trial
under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501
(2001), claiming, among other things, that his counsel was
ineffective (1) because counsel went forward and pursued a lack
of criminal responsibility defense without the support of an
expert witness, and (2) because counsel failed to properly advise the defendant regarding the viability (or lack thereof)
of that defense, which (allegedly) resulted in the defendant
rejecting a plea offer he would have accepted if properly
advised. The motion for a new trial was denied without an
evidentiary hearing, and the defendant appeals. We affirm.
Background. 1. Incident and evidence at trial. The
present matter stems from an incident at Massachusetts General
Hospital (MGH) that occurred on October 22, 2009. The
Commonwealth's evidence included numerous witnesses, including
the victim and expert witnesses, as well as physical evidence,
surveillance video, and photographs.
The evidence showed that at around 3 P.M. that day, the
defendant attacked the victim, an employee of MGH, inside a
woman's restroom. The victim so testified, identifying the
defendant in court. Other witnesses had seen the defendant
outside the restroom in the days before the attack, and still
other witnesses saw the defendant shortly before the attack
pretending to drink from a water fountain near the restroom.
Shortly before the attack, the defendant calmly told two women
that the women's restroom was out of order. A handwritten sign
taped onto the restroom door read: "Out of order. Do not use."
The victim went to use the restroom at around 3 P.M. The
victim saw other women coming out of the restroom, and entered
it. She testified that she could not see the whole "out of
2 order" sign, as the sign was "falling off." When the victim
entered the restroom, she was alone.
While the victim was in the bathroom stall, she heard paper
rustling and tape being used. When the victim left the bathroom
stall and washed her hands, the defendant calmly walked into the
bathroom and began to look around. The victim asked the
defendant if he realized he was in the women's restroom; the
defendant calmly responded, "yes."
The defendant then approached the victim and assaulted her.
He threw her back to the floor, and slammed her head against the
floor. The victim tried to push the defendant off and yelled
for help, but the defendant covered her mouth with his hands.
The defendant then choked the victim while he had his knee on
her chest. While the defendant kept one hand on the victim's
throat, he pulled the front of the victim's pants, ripping off
the pants' buttons and undoing the zipper. He told the victim
to "[s]hut up and cooperate."
The victim continuously tried to get out the bathroom door,
but the defendant stopped her. The last time the victim tried
to run out of the bathroom the defendant grabbed her belt loop,
but it snapped and the victim was able to escape into the
hallway. When the victim escaped, her pants were lower than her
hips, and her face was covered in blood.
3 The defendant exited the bathroom and walked down the
hallway at a "normal pace" with blood on his hands. The victim
pointed to the defendant, screaming, "He tried to hurt me." A
security officer then apprehended the defendant. When the
defendant was apprehended, he did not say anything or resist,
but stood with a "blank stare" on his face. An officer noticed
that the zipper of the defendant's pants was all the way down.
A bystander witnessed many of the above events. She heard
loud screams coming from the women's restroom, opened the
restroom door and saw the victim trying to pull up her pants,
with her hips and buttocks exposed, while the defendant leaned
over her. The defendant looked "steady and calm" while the
victim, whose face was covered in blood, looked frightened and
panicked. The victim pointed to the defendant and told the
bystander, "He did it. He tried to hurt me." As the defendant
proceeded down the hallway after the attack, the bystander
pointed to the defendant.1
A handwriting expert testified that in his opinion, the
"out of order" sign was handwritten by the defendant. The sign
was written on the back of a document titled, "Verification of
1 Surveillance video exhibits captured the victim after she came out of the restroom, the defendant walking down the hallway after the attack, and the bystander pointing toward him after the attack.
4 Homelessness." The defendant's wallet contained an
identification from a homeless shelter as well as pornographic
material. Tape in the defendant's backpack was similar to the
tape used to hang up the sign.
2. Dr. Robert Joss and plea negotiations. On January 7,
2010, the defendant retained Dr. Robert Joss as an expert for
the planned defense of lack of criminal responsibility due to
mental disease or defect. The day before jury empanelment,
April 20, 2010, during a motion hearing, defense counsel stated
that he intended to call Dr. Joss to testify "to [the
defendant's] mind[s]et during the events. It's going to be
basically a McHoul defense here."
That same day, the Commonwealth informed the trial judge
that if the defendant were to plead guilty, the Commonwealth
would offer a recommended sentence of from nineteen to twenty
years, followed by fifteen years of probation. Defense counsel
responded, "We want to go to trial."
The next day, April 21, 2010, the day scheduled for trial,
defense counsel relayed to the trial judge, outside the presence
of the defendant, that Dr. Joss could not "legitimately come to
an opinion as to [the defendant's] state of mind at the time of
5 this incident." Defense counsel stated that he was informed of
this that morning.2
Defense counsel further requested, "The D.A. has offered 18
to 20 years with 15 years of probation. . . . [The defendant
is] asking if the Court would consider a 15-year sentence if
he's willing to plea to that[.]" The trial judge responded that
he was prepared to give the defendant a sentence of from fifteen
to eighteen years. Defense counsel responded, "It won't take
long to talk to [the defendant] about it." The judge then took
a recess so that defense counsel could speak to the defendant.
The recess lasted one hour or a little more. On returning,
defense counsel did not mention a plea bargain, but instead
requested a sixty-day continuance so that he could attempt to
find another expert witness. The judge denied the request.
Defense counsel then relayed, in the presence of the defendant,
that defense counsel was still going forward with a defense of
lack of criminal responsibility and was still planning on
2 As detailed in defense counsel's and Dr. Joss's affidavits, infra, Dr. Joss interviewed the defendant for the first time on January 23, 2010. On April 15, 2010, Dr. Joss discussed difficulties with a lack of criminal responsibility defense with defense counsel. Dr. Joss interviewed the defendant for a second time on April 18, 2010. On April 20, 2010, Dr. Joss informed defense counsel that he could not come to a conclusion about the defendant's lack of criminal responsibility. On April 21, 2010, defense counsel asked Dr. Joss to reconsider his findings; Dr. Joss responded that it would be detrimental to the defense for him to testify.
6 calling Dr. Joss to testify about the mental history of the
defendant, but not to the defendant's mental state during the
incident.
The trial began that day. In his opening statement,
defense counsel stated that the defendant "is not a well man,"
encouraged the jury "to listen closely [and] make your own
judgments as to the state of mind that [the defendant] was in at
that time," and stated that the case was "an insanity defense."
In his opening, defense counsel did not state that the defense
would present any particular expert witnesses, including
Dr. Joss, or evidence.
Defense counsel then presented a defense through cross-
examination and argument. During the course of the trial,
defense counsel consulted with two additional experts, but
"[g]iven what their testimony [was] projected to be" defense
counsel did not think that they were "going to help my case."
Defense counsel subsequently decided to not present any
witnesses.
Defense counsel was precluded from arguing lack of criminal
responsibility at closing, based on the state of the evidence,
and the judge also declined to instruct the jury on the same.
In his closing, defense counsel argued that the defendant was
guilty of assault and battery, but not assault with intent to
rape or assault and battery with a dangerous weapon. Defense
7 counsel also urged the jury to consider the defendant's mental
condition.
Following trial, the jury convicted the defendant on all
counts. The trial judge sentenced the defendant to twenty-five
to thirty years on the charge of assault with intent to rape,
second and subsequent, and ten years of probation from and after
on the remaining charges.
3. Motion for a new trial. The defendant filed a motion
for a new trial over eleven years later, in October of 2021.
The defendant argued that trial counsel rendered ineffective
assistance in two areas. First, he argued that trial counsel
was ineffective in "promising the jury an 'insanity defense'
based on the hope that one would materialize." Second, he
argued that trial counsel's "ineffective advice regarding the
viability of a criminal responsibility defense," particularly
relying on Dr. Joss, caused the defendant to reject the plea
offer. The defendant also argued that the trial judge abused
his discretion in denying the defendant's motion for a
continuance.
The motion for a new trial was supported by affidavits from
the defendant, defense counsel, and Dr. Joss. The defendant's
affidavit stated that the defendant was aware that in the event
of a plea, the prosecutor had offered to recommend a sentence of
from nineteen to twenty years, but that the defendant "did not
8 know" that the judge had "mentioned the possibility of imposing
a lower sentence." The defendant's affidavit also stated that
he "expected that [defense counsel] had evidence to support my
[lack of criminal responsibility] defense and would call
Dr. Joss or the other doctors" to present that defense, and that
the defendant "did not know that [defense counsel] was
unprepared to go forward" with such a defense. The defendant's
affidavit did not address any specific conversations with
defense counsel, and in particular, did not address what he and
defense counsel discussed during the recess that defense counsel
requested shortly before trial began.
Defense counsel's affidavit also did not address any
specific conversations between him and the defendant, and in
particular, did not address what counsel discussed with the
defendant during the recess that counsel requested for the
purpose of discussing the judge's fifteen to eighteen year plea
offer. Defense counsel's affidavit did state, however, that the
defendant "did not accept any offer of the judge," and "was not
interested in any offers put forth by the Commonwealth."
Defense counsel further confirmed that counsel knew, as of the
day of trial, that Dr. Joss had indicated that his opinions
would not help the defendant's case. Defense counsel's
affidavit did not address whether or not he so advised the
defendant.
9 The motion judge, who was different than the trial judge,
denied the motion for a new trial without an evidentiary
hearing, concluding that the motion failed to raise a
substantial issue. The motion judge did not credit the
defendant's statements in his affidavit that he did not know
that the trial judge offered a lower sentence, and that, if he
had known that defense counsel would "fail to present an
insanity defense at trial," the defendant would have accepted
the Commonwealth's earlier plea offer. This appeal followed.
Discussion. On appeal, the defendant contends that the
motion judge abused her discretion in denying his motion for a
new trial without an evidentiary hearing. "We review a judge's
denial of a motion for a new trial for a significant error of
law or other abuse of discretion" (quotation and citation
omitted). Commonwealth v. Alcide, 472 Mass. 150, 158 (2015).
"A defendant bears the burden of proof on a motion for a new
trial . . . and a judge is entitled to discredit affidavits he
or she does not find credible" (citations omitted).
Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). The motion
judge is not required to conduct an evidentiary hearing on a
motion for a new trial unless the defendant raises a
"substantial issue." Mass. R. Crim. P. 30 (c) (3), as appearing
in 435 Mass. 1501 (2001).
10 1. Ineffective assistance of counsel. a. Lack of
criminal responsibility defense. The defendant first argues
that he was denied effective assistance of counsel because
counsel should not have gone forward with a lack of criminal
responsibility defense where he had no expert witness to so
testify. We are not persuaded. To prevail on a motion for a
new trial claiming ineffective assistance of counsel, a
defendant must show "serious incompetency of counsel (behavior
falling measurably below that which might be expected from an
ordinary fallible lawyer) and prejudice." Commonwealth v.
Mahar, 442 Mass. 11, 15 (2004). To show prejudice, the
defendant must show that "counsel's poor performance 'likely
deprived the defendant of an otherwise available, substantial
ground of defence.'" Commonwealth v. Millien, 474 Mass. 417,
429-430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89,
96 (1974).
Here, counsel had very few options available, and made a
strategic decision as to the defense to advance. The case
against the defendant was extremely strong, including not only
the victim's testimony but multiple corroborating witnesses as
well as physical evidence. Given the facts, a straight not
guilty verdict was highly unlikely. Counsel decided to pursue a
lack of criminal responsibility defense and made a reasonable
effort to locate an expert witness, but the expert he worked
11 with would not support the defendant's case. Shortly after
counsel learned this, he sought a continuance, which was denied.
Strategic decisions by counsel do not amount to ineffective
assistance of counsel unless they are "so manifestly
unreasonable as to be unprotected by the labels of 'trial
strategy' or 'trial tactics.'" Commonwealth v. Smith, 459 Mass.
538, 551 (2011), quoting Commonwealth v. Adams, 374 Mass. 722,
728 (1978). Here, counsel averred, "I had no experts to offer
an expert opinion on [lack of criminal responsibility] but I did
believe that [the defendant's] conduct was extreme enough to
suggest the insanity defense based on a juror's own life
experiences." Counsel's decisions were not manifestly
unreasonable. See Commonwealth v. Berry, 457 Mass. 602, 612 n.5
(2010) (expert testimony is not required to raise insanity
defense); Commonwealth v. Hall, 45 Mass. App. Ct. 146, 152
(1998) (same). Moreover, and in any event, the defendant did
not show prejudice. He did not provide any evidence that there
was any other expert witness who might have provided testimony
that would have helped him, or that an alternative strategy had
a reasonable chance of a better result. See Commonwealth v.
Velez, 487 Mass. 533, 546 (2021).
b. Alleged ineffective assistance leading to a failure to
plead. The defendant next argues that he received ineffective
advice from defense counsel regarding the viability of an
12 "insanity defense," that he expected expert witnesses, and that
had he been properly advised he would have taken the plea offer
of fifteen to eighteen years offered by the judge. "It is
beyond dispute that a defendant's decision whether to plead
guilty or proceed to a trial is a critical stage in a criminal
proceeding for which he is constitutionally entitled to the
effective assistance of counsel." Mahar, 442 Mass. at 14. To
establish prejudice in the plea context, the defendant "must
show the outcome of the plea process would have been different
with competent advice." Commonwealth v. Camacho, 472 Mass. 587,
604 (2015), quoting Lafler v. Cooper, 566 U.S. 156, 163 (2012).
Specifically, "the defendant must demonstrate a reasonable
probability that the prosecution would have made an offer, that
the defendant would have accepted it, and that the court would
have approved it." Marinho, 464 Mass. at 129.3
The motion judge rejected this ineffective assistance
argument without holding an evidentiary hearing, and we perceive
no error. The only support for the defendant's claim that he
3 We note that the ineffective assistance argument based on the plea offer comes to us in an unusual posture, because as to this argument the remedy the defendant seeks is not a new trial, but rather to be granted the ability to plead guilty and receive a particular sentence. Thus, as a remedy for ineffective assistance of counsel, the defendant argued that he "should receive the 15-18-year term offered by the judge." Because we affirm the judge's decision that the defendant has failed to make out an ineffective assistance claim, we do not address the viability of such a theory.
13 was misadvised is his own affidavit, which is lacking in
important detail. The defendant's affidavit did not address the
most critical fact -- what was the defendant told, and what was
discussed, during the recess that defense counsel requested,
after the judge offered a sentence of from fifteen to eighteen
years and at a time when defense counsel was clearly focused on
the fact that he did not have an expert witness to testify. The
motion judge was free to "reject as not credible the defendant's
self-serving, conclusory affidavit," Commonwealth v. Grant, 426
Mass. 667, 673 (1998), and did not abuse her discretion in doing
so. See Commonwealth v. Rebello, 450 Mass. 118, 130 (2007).
Defense counsel's affidavit did not corroborate the
defendant's affidavit on any critical point. Defense counsel
did not confirm that he had not told the defendant about the
lack of an expert witness, or about the judge's offer. See
Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004) ("When
weighing the adequacy of the materials submitted in support of a
motion for a new trial, the judge may take into account the
suspicious failure to provide pertinent information from an
expected and available source"). Indeed, defense counsel's
affidavit stated that the defendant would not accept any offer
of the judge and had not been interested in any plea offers put
forth by the Commonwealth -- statements the motion judge could
of course credit. Moreover, the factual context in which the
14 discussion at recess occurred certainly suggests that counsel
would have advised the defendant of the judge's offer, and of
the weakness of the defense.
Accordingly, the defendant did not raise a substantial
issue requiring an evidentiary hearing on the issue of
ineffective assistance of counsel. See Mahar, 442 Mass. at 15.
2. Denial of a continuance. Finally, the defendant argues
that the trial judge abused his discretion when he refused
defense counsel's request for a continuance. That issue should
have been raised on direct appeal, but it was not as the
defendant's direct appeal was dismissed at the defendant's
request. The issue accordingly should have been treated as
waived, although the Commonwealth did not argue such in its
opposition to the defendant's motion for a new trial or in its
appellee brief. See Commonwealth v. Camblin, 478 Mass. 469, 480
n.10 (2017); Commonwealth v. Randolph, 438 Mass. 290, 293-295
(2002).
In any event, we would review the denial of a motion for a
continuance for an abuse of discretion. Commonwealth v.
Fernandez, 480 Mass. 334, 340 (2018). Here, even if we were to
agree that under the circumstances a continuance would have been
warranted, the defendant did not show prejudice from the denial.
Primarily, the strength of the Commonwealth's case against the
defendant was overwhelming. Further, the defendant did not
15 provide an affidavit from an alternative expert witness who
would have testified on his behalf. Thus, the defendant did not
establish how a continuance would have affected the result of
the trial. Accordingly, the denial of the motion for a new
trial on this ground was not an abuse of discretion.
Order denying motion for a new trial affirmed.
By the Court (Ditkoff, Englander & Smyth, JJ.4),
Clerk
Entered: September 23, 2024.
4 The panelists are listed in order of seniority.