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-916
COMMONWEALTH
vs.
FRANCISCO TEJADA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant Francisco Tejada appeals from the denial of
his motion for a new trial, following a jury trial in which he
was convicted of multiple counts of aggravated rape of a child
and indecent assault and battery.1 The victims of these acts
were three members of Tejada's family -- his stepdaughter and
two of the stepdaughter's cousins. The argument that Tejada
made in his motion for new trial, and that he presses on appeal,
is that he received ineffective assistance of counsel because
his trial counsel did not move to sever the counts relating to
1The defendant also filed a direct appeal of his conviction, which was consolidated with this appeal. However, he makes no separate arguments with respect to his direct appeal. each victim. The motion judge, who was also the trial judge,
denied the motion, concluding that ineffective assistance had
not been demonstrated. We discern no abuse of discretion, and
accordingly affirm.
Background. In September 2019, Tejada was convicted by a
jury of sexual offenses committed against his stepdaughter, Jane
Doe 1, and his stepdaughter's cousins, Jane Doe 2 and Jane Doe
3. Jane Doe 1 was born in 1997. Sometime between 2006 and
2009, when Jane Doe 1 was between nine and twelve years old,
Tejada forced Jane Doe 1 into sexual intercourse. Thereafter,
while Jane Doe 1 was still in elementary school, Tejada began to
force Jane Doe 1 into sexual intercourse on a monthly basis.
Tejada would require sexual acts, for example, as a condition to
allowing Jane Doe 1 to do things such as go out with friends.
Tejada's rapes persisted until Jane Doe 1 was in the tenth or
eleventh grade, at which point she stopped complying with
defendant's demands for sexual acts.
Jane Doe 2, who is Jane Doe 1's cousin, was four years
younger than Jane Doe 1, born in May of 2001. Tejada indecently
assaulted Jane Doe 2 several times. One time, for example, when
she was middle school aged or younger, Jane Doe 2 fell asleep in
her aunt's living room, and she woke to find Tejada standing
over her and running his hand up her stomach toward her breasts.
Another time, while Jane Doe 2 was in middle school, she was
2 visiting her aunt and went to pick up the mail downstairs. When
she turned to return upstairs, Tejada was leaning against the
door that went upstairs. Jane Doe 2 tried to go past Tejada,
but he grabbed her and squeezed her breasts with his hands.
Jane Doe 2 also testified that on a family trip, Tejada entered
a pool with her and touched her buttocks and vagina; however,
this assault was not the basis of any charges against Tejada.
At the time, Tejada claimed as to the incident in the pool that
he was "playing around."
Jane Doe 3, who is the cousin of Jane Doe 1 and Jane Doe 2,
is the same age as Jane Doe 1. When Jane Doe 3 was fourteen,
Tejada kissed her on the mouth and touched her on the buttocks.
In 2016, Tejada was indicted on five counts of aggravated
rape of a child, G. L. c. 265, § 23A (counts 1-5); five counts
of indecent assault and battery on a child under fourteen, G. L.
c. 265, § 13B (counts 6-10); one count of rape, G. L. c. 265,
§ 22 (count 11); and two counts of indecent assault and battery
on a person fourteen or older, G. L. c. 265, § 13H (count 12-
13). Jane Doe 1 was the victim for counts 1-8 and 11; Jane Doe
2 was the victim for counts 9-10; and Jane Doe 3 was the victim
for counts 12-13.2
The Commonwealth nol prossed count 5 prior to trial, and 2
nol prossed counts 4 and 10 on the last day of trial.
3 In August 2019, the Commonwealth moved to join additional
charges for which the defendant had been arraigned in June 2019.
These charges alleged sexual abuse of two other victims who were
not part of Tejada's family. The defendant opposed the motion,
and the judge denied the motion for joinder, concluding among
other things that it was not clear that the new offenses were
"related offenses" within the meaning of Mass. R. Crim. P. 9,
378 Mass. 859 (1979).
The defendant was tried in September 2019. After the
Commonwealth rested, the defendant moved for a required finding
of not guilty on counts 11 and 13, and the judge granted the
motions. The jury returned guilty verdicts on the remaining
charges, which included at least one charge as to each victim.
Tejada filed his motion for a new trial in July 2022,
arguing that trial counsel was ineffective for failing to seek
severance. The motion was accompanied by an affidavit from the
defendant. Notably, however, there was no affidavit from trial
counsel. The motion judge, who was also the trial judge, denied
the motion. The judge determined that trial counsel's lack of a
motion to sever was a strategic choice. The judge based this
conclusion in part on trial counsel's successful opposition to
the Commonwealth's motion to join additional charges, which
demonstrated counsel's familiarity with the law of joinder and
4 suggested that his decision not to file a motion to sever the
charges was strategic.
In conducting his analysis, the judge noted the difficulty
in evaluating trial counsel's conduct without an affidavit from
trial counsel explaining his decision not to move for severance.
The judge also concluded that when viewed as a strategic choice,
trial counsel's decision not to sever the charges was not
manifestly unreasonable, given that the defense strategy was to
depict all three victims as liars and that trying the charges
together allowed counsel to expose inconsistencies in the
testimony of the victims and other witnesses. Indeed, the judge
noted that the strategy was "somewhat effective." The judge
also ruled that Tejada could not show that trial counsel's
failure to file a motion to sever deprived him of an otherwise
available ground of defense.
Discussion. Tejada argues that the judge abused his
discretion by denying the motion for a new trial. He asserts
that the judge should have held an evidentiary hearing, and that
the failure to do so was reversible error. "We review a judge's
decision to deny a motion for a new trial without holding an
evidentiary hearing 'for a significant error of law or other
abuse of discretion.'" Commonwealth v. Upton, 484 Mass. 155,
162 (2020), quoting Commonwealth v. Bonnett, 482 Mass. 838, 843-
844 (2019).
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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-916
COMMONWEALTH
vs.
FRANCISCO TEJADA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant Francisco Tejada appeals from the denial of
his motion for a new trial, following a jury trial in which he
was convicted of multiple counts of aggravated rape of a child
and indecent assault and battery.1 The victims of these acts
were three members of Tejada's family -- his stepdaughter and
two of the stepdaughter's cousins. The argument that Tejada
made in his motion for new trial, and that he presses on appeal,
is that he received ineffective assistance of counsel because
his trial counsel did not move to sever the counts relating to
1The defendant also filed a direct appeal of his conviction, which was consolidated with this appeal. However, he makes no separate arguments with respect to his direct appeal. each victim. The motion judge, who was also the trial judge,
denied the motion, concluding that ineffective assistance had
not been demonstrated. We discern no abuse of discretion, and
accordingly affirm.
Background. In September 2019, Tejada was convicted by a
jury of sexual offenses committed against his stepdaughter, Jane
Doe 1, and his stepdaughter's cousins, Jane Doe 2 and Jane Doe
3. Jane Doe 1 was born in 1997. Sometime between 2006 and
2009, when Jane Doe 1 was between nine and twelve years old,
Tejada forced Jane Doe 1 into sexual intercourse. Thereafter,
while Jane Doe 1 was still in elementary school, Tejada began to
force Jane Doe 1 into sexual intercourse on a monthly basis.
Tejada would require sexual acts, for example, as a condition to
allowing Jane Doe 1 to do things such as go out with friends.
Tejada's rapes persisted until Jane Doe 1 was in the tenth or
eleventh grade, at which point she stopped complying with
defendant's demands for sexual acts.
Jane Doe 2, who is Jane Doe 1's cousin, was four years
younger than Jane Doe 1, born in May of 2001. Tejada indecently
assaulted Jane Doe 2 several times. One time, for example, when
she was middle school aged or younger, Jane Doe 2 fell asleep in
her aunt's living room, and she woke to find Tejada standing
over her and running his hand up her stomach toward her breasts.
Another time, while Jane Doe 2 was in middle school, she was
2 visiting her aunt and went to pick up the mail downstairs. When
she turned to return upstairs, Tejada was leaning against the
door that went upstairs. Jane Doe 2 tried to go past Tejada,
but he grabbed her and squeezed her breasts with his hands.
Jane Doe 2 also testified that on a family trip, Tejada entered
a pool with her and touched her buttocks and vagina; however,
this assault was not the basis of any charges against Tejada.
At the time, Tejada claimed as to the incident in the pool that
he was "playing around."
Jane Doe 3, who is the cousin of Jane Doe 1 and Jane Doe 2,
is the same age as Jane Doe 1. When Jane Doe 3 was fourteen,
Tejada kissed her on the mouth and touched her on the buttocks.
In 2016, Tejada was indicted on five counts of aggravated
rape of a child, G. L. c. 265, § 23A (counts 1-5); five counts
of indecent assault and battery on a child under fourteen, G. L.
c. 265, § 13B (counts 6-10); one count of rape, G. L. c. 265,
§ 22 (count 11); and two counts of indecent assault and battery
on a person fourteen or older, G. L. c. 265, § 13H (count 12-
13). Jane Doe 1 was the victim for counts 1-8 and 11; Jane Doe
2 was the victim for counts 9-10; and Jane Doe 3 was the victim
for counts 12-13.2
The Commonwealth nol prossed count 5 prior to trial, and 2
nol prossed counts 4 and 10 on the last day of trial.
3 In August 2019, the Commonwealth moved to join additional
charges for which the defendant had been arraigned in June 2019.
These charges alleged sexual abuse of two other victims who were
not part of Tejada's family. The defendant opposed the motion,
and the judge denied the motion for joinder, concluding among
other things that it was not clear that the new offenses were
"related offenses" within the meaning of Mass. R. Crim. P. 9,
378 Mass. 859 (1979).
The defendant was tried in September 2019. After the
Commonwealth rested, the defendant moved for a required finding
of not guilty on counts 11 and 13, and the judge granted the
motions. The jury returned guilty verdicts on the remaining
charges, which included at least one charge as to each victim.
Tejada filed his motion for a new trial in July 2022,
arguing that trial counsel was ineffective for failing to seek
severance. The motion was accompanied by an affidavit from the
defendant. Notably, however, there was no affidavit from trial
counsel. The motion judge, who was also the trial judge, denied
the motion. The judge determined that trial counsel's lack of a
motion to sever was a strategic choice. The judge based this
conclusion in part on trial counsel's successful opposition to
the Commonwealth's motion to join additional charges, which
demonstrated counsel's familiarity with the law of joinder and
4 suggested that his decision not to file a motion to sever the
charges was strategic.
In conducting his analysis, the judge noted the difficulty
in evaluating trial counsel's conduct without an affidavit from
trial counsel explaining his decision not to move for severance.
The judge also concluded that when viewed as a strategic choice,
trial counsel's decision not to sever the charges was not
manifestly unreasonable, given that the defense strategy was to
depict all three victims as liars and that trying the charges
together allowed counsel to expose inconsistencies in the
testimony of the victims and other witnesses. Indeed, the judge
noted that the strategy was "somewhat effective." The judge
also ruled that Tejada could not show that trial counsel's
failure to file a motion to sever deprived him of an otherwise
available ground of defense.
Discussion. Tejada argues that the judge abused his
discretion by denying the motion for a new trial. He asserts
that the judge should have held an evidentiary hearing, and that
the failure to do so was reversible error. "We review a judge's
decision to deny a motion for a new trial without holding an
evidentiary hearing 'for a significant error of law or other
abuse of discretion.'" Commonwealth v. Upton, 484 Mass. 155,
162 (2020), quoting Commonwealth v. Bonnett, 482 Mass. 838, 843-
844 (2019). "Where the motion judge was also the trial judge,
5 'we give special deference to the judge's findings of fact and
the ultimate decision on the motion'" (quotations omitted).
Commonwealth v. Corey, 493 Mass. 674, 684 (2024), quoting
Commonwealth v. Kolenovic, 471 Mass. 664, 672-673 (2015).
To establish ineffective assistance, Tejada must show that
there was "serious incompetency, inefficiency, or inattention of
counsel -- behavior of counsel falling measurably below that
which might be expected from an ordinary fallible lawyer";
Tejeda must also show that such incompetency "has likely
deprived [Tejada] of an otherwise available, substantial ground
of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
See Commonwealth v. Peloquin, 437 Mass. 204, 210 (2002) ("The
burden is on the defendant to meet both prongs of the test").
"[S]trategic or tactical judgments of counsel will not be second
guessed unless the judgment is shown to be 'manifestly
unreasonable.'" Peloquin, 437 Mass. at 210, quoting
Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
Tejada argues that his trial counsel's failure to move to
sever the charges arising from crimes against separate victims
was manifestly unreasonable -- that is, seriously incompetent --
as a trial tactic. He contends that the motion to sever likely
would have been successful, in that the charges against each
victim were not "related offenses" within the meaning of Mass.
R. Crim. P. 9 (a), 378 Mass. 859 (1979), but instead involved
6 distinct types of alleged sexual behavior, and three different
victims, over a lengthy time frame. Furthermore, Tejada argues
that testimony from each of the victims would not have been
admissible at separate trials regarding the other victims; thus,
that trial counsel's failure to move for severance could not
have been a reasonable trial tactic, where it resulted in the
admission of otherwise inadmissible evidence of prior acts of
sexual assault, narrated by different but related witnesses.
In evaluating whether trial counsel's representation fell
measurably below what would be expected, we first consider
whether trial counsel's failure to file a motion to sever was a
strategic or tactical decision. Here, the judge found that
trial counsel's decision was likely strategic or tactical. We
give that determination deference, particularly where the motion
judge was also the trial judge (and where the defendant
submitted no affidavit from trial counsel). See Corey, 493
Mass. at 684 (appellate court grants special deference to
factual findings of motion judge when he was also trial judge).
The judge could reasonably infer that trial counsel was
knowledgeable regarding the law of joinder and severance, given
that trial counsel successfully opposed the Commonwealth's 2019
motion to join additional charges. The motion judge was not
required to credit the defendant's assertion, in his affidavit,
that trial counsel did not inform him that he had made the
7 strategic decision not to seek severance. See Commonwealth v.
Shepherd, 493 Mass. 512, 537 n. 39 (2024).3
We next consider whether trial counsel's decision not to
file a motion to sever, as a strategic decision, was manifestly
unreasonable. In that regard we evaluate whether trial
counsel's decision was rational, "taking into account all the
circumstances known or that should have been known to counsel in
the exercise of his duty to provide effective representation to
the client . . . ." Kolenovic, 471 Mass. at 674-675. Our
review of counsel's strategic decisions is limited temporally,
"by requiring a focus on the point in time when counsel made the
challenged strategic decision," and substantively, as tactics
are only manifestly unreasonable if "lawyers of ordinary
training and skill in the criminal law would not consider [them]
competent" (citations omitted). Id. at 674.
We discern no error in the judge's conclusion that trial
counsel's decision was not manifestly unreasonable. The
fundamental weakness in the defendant's position is that the
judge was not provided with trial counsel's reasoning, or the
factors trial counsel considered in reaching his strategy. The
defendant argues that a motion to sever likely would have been
3 We note that this affidavit has not been presented to this court on appeal. See Commonwealth v. Bernier, 366 Mass. 717, 720 (1975).
8 successful, and would thereby have eliminated prejudicial
evidence from the separate trials as to each Jane Doe. However,
trial counsel also had to consider what effect a successful
motion would have on his overall trial strategy. According to
the defendant's argument, a successful motion to sever would
have meant that Jane Doe 2 and Jane Doe 3 would not have
testified. However, the judge found that trial counsel's
strategy was to depict each of the cousins/victims as liars,
such that joinder of the cases aided trial counsel's strategy by
allowing trial counsel to expose inconsistencies among the
accounts given by the victims and other witnesses. Again, we
defer to the judge's finding that this tactic was "somewhat
effective."4
Moreover, there may have been other circumstances that
trial counsel considered, that would not have been apparent from
the record. For example, trial counsel also would have had to
consider any directions from the defendant as to whether the
defendant wished to go through multiple separate trials
4 Under the circumstances we need not determine whether a motion to sever would have been successful, if made, or whether the testimony of each victim would have been admitted in the separate trials regarding the other victims. A trial judge has considerable discretion in allowing, or not allowing, joinder. See Commonwealth v. Pillai, 445 Mass. 175, 179-180 (2005). Here the judge found that the decision not to seek severance was strategic and not manifestly unreasonable, and the defendant provided no evidence from trial counsel as to either issue.
9 involving members of his family. On this record, we simply do
not know what considerations influenced trial counsel.
"A judge may deny a motion for a new trial without an
evidentiary hearing where the moving party 'suspicious[ly]
fail[s] to provide pertinent information from an expected and
available source.'" Upton, 484 Mass. at 162-163, quoting
Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). "We have
also recognized, in the context of ineffective assistance
claims, that 'a judge reasonably may draw a negative inference
in many . . . cases and conclude that there is no affidavit from
counsel because a truthful affidavit would not assist the
defendant.'" Commonwealth v. Miller, 101 Mass. App. Ct. 344,
352 (2022), quoting Commonwealth v. Martinez, 86 Mass. App. Ct.
545, 551 (2014).
There are situations in which the absence of an affidavit
from trial counsel may be excused, such as where trial counsel
refuses to provide an affidavit despite having favorable
information. Miller, 101 Mass. App. Ct. at 352. This case does
not present such a situation. Tejada has not presented any
affidavit explaining what, if any, attempts he made to obtain an
affidavit from trial counsel. See id. at 353 ("Without an
affidavit detailing the facts surrounding trial counsel's
refusal to provide support or cooperate with the motion, we have
no basis to overrule the judge's discretionary determination").
10 In sum, the judge did not err in denying the motion for new
trial where the record did not demonstrate that trial counsel
acted manifestly unreasonably in not filing a motion to sever.5
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Englander, Hershfang & Brennan, JJ.6),
Clerk
Entered: January 30, 2025.
5 As the judge did not err in determining that counsel's performance was not ineffective, we need not address whether Tejada suffered any prejudice.
6 The panelists are listed in order of seniority.