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-1119
COMMONWEALTH
vs.
PEKINGS AZIWUNG.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a six-person jury trial in the Superior Court, the
defendant was convicted of rape. 1 Shortly after sentencing, the
defendant moved for a new trial. In this consolidated matter
the defendant appeals from the conviction and from the order
denying his new trial motion, arguing that he was coerced into
waiving his constitutional right to a twelve-person jury, and
that his counsel was ineffective for a variety of reasons. We
affirm.
Background. We briefly summarize the trial evidence,
reserving certain matters for later discussion. At the time of
the rape, the defendant and the victim were dating. The victim
was house sitting one weekend, and she invited the defendant
1 The jury acquitted the defendant on one count of strangulation or suffocation. over to spend the night with her there. At some point that
evening, the victim and the defendant engaged in consensual
sexual intercourse. After this first sexual encounter, the
defendant went to the bathroom. The victim and defendant gave
divergent testimony about what happened after the defendant
returned from the bathroom.
The victim testified that she started feeling ill while the
defendant was in the bathroom, and that when he returned, she
told him that she did not want to have sex anymore. According
to her, the defendant responded that he "wasn't done," and he
held her down, strangled her, and raped her. By contrast, the
defendant testified that when he returned from the bathroom, the
victim performed oral sex on him, put a condom on him, and the
two again engaged in consensual sexual intercourse. At some
point during either the first or second encounter, the defendant
video recorded the victim on his phone. 2
The victim allowed the defendant to stay the night, and,
after he fell asleep, she looked through his phone. On his
phone, she found text messages that the defendant had sent to
other women indicating that he was cheating on her. The victim
was upset by this discovery, and she confronted the defendant
about it. The victim drove the defendant home in the morning.
2 It is undisputed that this video depicted consensual sex.
2 It is also undisputed that over the course of the following
days, the defendant repeatedly contacted the victim
"apologizing, saying the devil made him do it, and [that] he was
drinking too much, and that he was really sorry, and he knew he
did something really bad." On one occasion, he went to the
victim's parents' house and cried in their driveway asking for
forgiveness. 3
Two days after the encounters, the victim went to the
emergency room, where a registered nurse completed an evidence
collection kit and sexual assault examination. During the
examination, a condom was recovered from inside the victim's
vagina.
Discussion. 1. Standard of review. We review the denial
of a motion for new trial for a "significant error of law or
other abuse of discretion," Commonwealth v. DiBenedetto, 458
Mass. 657, 664 (2011), and will only disturb the decision where
it is "manifestly unjust or the trial was infected with
prejudicial constitutional error." Commonwealth v. Imbert, 479
Mass. 575, 581 (2018), quoting Commonwealth v. Jenkins, 458
Mass. 791, 803 (2011).
3 The victim's father recorded the defendant's apology and the video was admitted into evidence at trial and played for the jury.
3 2. Right to a jury trial. The defendant first argues that
the denial of his motion for new trial should be vacated because
he was denied his constitutional right to a fair trial; he
contends that the waiver of his right to a twelve-person jury
was not voluntary. More specifically, he asserts that he was
coerced into waiving this right when the trial judge stated that
he would "consider putting [the defendant] on house arrest" if
the defendant consented to a six-person jury trial. Because we
are not persuaded that there is a constitutional right to a
twelve-person jury, and we conclude that even if such a right
existed, the defendant's waiver of this right was knowing and
voluntary, we affirm.
First, there is no Federal constitutional right to be tried
by a jury of twelve. 4 See Williams v. Florida, 399 U.S. 78, 102-
4 The defendant erroneously relies on Ballew v. Georgia, 435 U.S. 223, 229 (1978), and Patton v. United States, 281 U.S. 276, 291- 293 (1930), for the proposition that his Sixth Amendment right to be tried by a jury of his peers necessarily implies a right to a twelve-person jury. Ballew does not support this argument; the court in that case held that "the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size below six members," not twelve. 435 U.S. at 239 (emphasis added). Similarly, the holding in Patton, although supporting the defendant's argument, was expressly overturned when the court held that a six-person jury was constitutional because "the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to the mystics.'" Williams v. Florida, 399 U.S. 78, 102 (1970), quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968) (Harlan, J., dissenting).
4 103 (1970). While it remains undecided whether there is a State
constitutional right to be tried by a jury of twelve under art.
12 of the Massachusetts Declaration of Rights, see Opinion of
Justices, 360 Mass. 877, 885 (1971), citing Williams, supra
(six-person juries constitutional in District Courts, but
constitutionality of six-person juries in Superior Court remains
undecided), we need not decide that question today. This is
because even assuming without deciding that defendants have a
State constitutional or statutory right to a twelve-person jury
in the Superior Court, 5 we conclude that in this case, the
defendant validly waived that right. See Commonwealth v.
Nicoll, 452 Mass. 816, 820 (2008). See also Mass. R. Crim. P.
19 (b), as appearing in 486 Mass. 1501 (2020).
The waiver of a right to a jury trial must be "knowing and
voluntary." Commonwealth v. Bennefield, 482 Mass. 250, 256
(2019), citing Ciummei v. Commonwealth, 378 Mass. 504, 507
5 Massachusetts statutes and rules reflect that twelve is the default number of deliberating jurors for criminal cases tried in the Superior Court; however, "[u]pon a finding of cause, the trial judge may impanel a lesser number of jurors." G. L. c. 234A, § 68. See Mass. R. Crim. P. 20 (d) (2) (selection of twelve jurors for deliberation from larger number that includes alternates). The defendant does not assert a violation of his statutory rights. Cf. G. L. c. 218, § 26A (specifying jury of six for District Court cases). See Commonwealth v. A Juvenile (No. 2), 384 Mass. 390, 394 (1981), citing G. L. c. 119, § 56 (e) ("The statutory right to a jury of twelve [is] a substantial right," and violations of that right require reversal, even in the absence of prejudice).
5 (1979). In making this determination, the trial judge must
engage in a colloquy with the defendant to ensure "that the
defendant has conferred with his counsel about the waiver, and
that he has not been pressured or cajoled and is not intoxicated
or otherwise rendered incapable of rational judgment." Id. at
256 n.4, citing Ciummei, supra at 509-510 "So long as a
colloquy occurs, the sole focus of our review is whether the
colloquy provided an evidentiary record on which the judge could
find the waiver was voluntary and intelligent." Commonwealth v.
Hendricks, 452 Mass. 97, 107-108 (2008).
Here, the defendant himself first raised the possibility of
waiving any right to a twelve-person jury trial. The defendant
and his counsel also signed two waiver forms asserting that the
waiver was knowing and voluntary. 6 Additionally, and perhaps
most importantly, judges conducted three colloquies with the
defendant regarding his waiver. First, on October 21, 2020, a
judge (pretrial judge) conducted a thorough colloquy on the
record in which he informed the defendant of his "practical and
potentially constitutional" right to a jury of twelve persons. 7
6 These forms were titled "Waiver of Right to be Tried by a Jury of 12 Persons," and "Defendant's Waiver of Jury of 12 and Consent to Jury of 6." 7 The judge also inquired as to the defendant's educational,
employment, and medical history; the extent of the consultation with his attorney; his understanding of the charges against him and potential penalties; and his understanding of the right that he was waiving.
6 Second, on November 3, 2020, the pretrial judge conducted
another colloquy. 8 Third, on the first day of trial, the trial
judge asked the defendant about the two waiver forms, the two
prior colloquies, and the defendant's current understanding of
and willingness to waive any right to a twelve-person jury.
During each of these colloquies, the defendant asserted that his
waiver was being made knowingly and voluntarily. Because the
judges were permitted to rely on the defendant's assertions
during the colloquies and on the waiver forms, we affirm their
separate findings that the waiver was made knowingly and
voluntarily. See Commonwealth v. Hernandez, 42 Mass. App. Ct.
780, 785 (1997).
Furthermore, we reject the defendant's argument that he was
coerced into waiving his right to a twelve-person jury. The
record makes clear that the pretrial judge's statement that he
would "consider" house arrest only if the defendant consented to
a six-person jury trial was a practical response to the
realities of the COVID-19 pandemic, and not a threat of greater
punishment (or, alternatively, a promise of more lenient
treatment in exchange for the waiver). 9 See Brangan v.
8 This colloquy was more truncated than the first. 9 At the time of the defendant's waiver, and as a result of the COVID-19 pandemic, all twelve-person jury trials had been continued indefinitely; on the other hand, six-person jury trials were still ongoing. In these circumstances, the judge reasoned that if the defendant consented to a six-person jury,
7 Commonwealth, 477 Mass. 691, 701-702 (2017) (pretrial detention
is not a form of punishment); Commonwealth v. Damiano, 14 Mass.
App. Ct. 615, 619 n.8 (1982) ("a claim of coercion must be
supported by facts appearing in the record and not based solely
on a defendant's subjective beliefs or complaints"). Cf.
Commonwealth v. Lebon, 37 Mass. App. Ct. 705, 706-708 (1994).
Thus, we agree with the motion judge that the defendant's waiver
was made knowingly and voluntarily, without coercion.
3. Ineffective assistance. To establish a basis for
relief on a claim of ineffective assistance of counsel, the
defendant must show that (1) counsel's conduct fell below the
standard of an ordinary fallible lawyer, and (2) that
shortcoming prejudiced him in some way. Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). "[A]rguably reasoned
tactical or strategic judgments" do not amount to ineffective
assistance of counsel unless they were "manifestly unreasonable"
when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979),
quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
Where, as here, we discern no "significant error of law or other
abuse of discretion" in the judge's rejection of the defendant's
this would allow for a more "prompt trial," and therefore "the burden of supervising [the defendant] would be relatively minimal." Given the pretrial judge's determination that the defendant was otherwise not a good candidate for long-term pretrial release, the judge was only willing to consider house arrest in these limited circumstances.
8 ineffective assistance claims, we affirm. Commonwealth v.
Forte, 469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace,
397 Mass. 303, 307 (1986).
a. Saliva in the condom. The defendant first argues that
his counsel was ineffective because he failed to highlight
critical evidence that the victim's saliva was found inside the
condom that was recovered during the sexual assault examination,
and because he failed to call an expert to testify about this
evidence. The defendant asserts that this evidence would have
made him appear more credible to the jury because it was
consistent with his version of events -- that the victim engaged
in oral sex with him during the second encounter before he put
on the condom and had consensual intercourse with her. He
similarly asserts that the evidence would have made the victim
appear less credible because it was inconsistent with her
version of events -- that the defendant came back from the
bathroom, put on a condom, and raped her. For several reasons,
we disagree with the defendant's characterization of the
evidence and conclude that it was reasonable for counsel not to
explore the saliva evidence further or to call an expert witness
to testify about the deoxyribonucleic acid (DNA) report. See
Strickland v. Washington, 466 U.S. 668, 691 (1984) ("counsel has
a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary").
9 First, it appears that counsel's failure to develop this
evidence more thoroughly was reasonable because, despite the
defendant's contention, the DNA report does not "clearly
state[]" that the victim's saliva was found inside the condom.
Rather, it states that "[a] female STR DNA profile was obtained"
from the condom, and that this DNA profile matched the victim.
In arguing that counsel had reason to investigate this fact
further, the defendant relies solely on evidence that was
introduced during trial, including the testimony of the forensic
scientist who conducted the DNA analysis and a stipulation by
the parties. 10 Thus, where defense counsel had no reason to know
about the potential presence of saliva in the condom before
trial, we discern no error in counsel's failure to investigate
that fact further. See Strickland, 466 U.S. at 691 ("In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness [under] all the
circumstances"). See also Wiggins v. Smith, 539 U.S. 510, 521-
522 (2003).
10The parties stipulated that "[t]he evidence collection kit contained vaginal swabs, slides and clothing of [the victim], and a condom obtained as a result of a physical examination . . . [which] were examined and tested positive for the presence of saliva, sperm cells and seminal fluid protein." The forensic scientist testified that saliva was found inside the interior of the condom.
10 Furthermore, even if defense counsel knew or should have
known about the potential presence of saliva in the condom
before trial, there was no error in his decision not to call an
expert to testify about this fact. "The decision to call, or
not to call, an expert witness fits squarely within the realm of
strategic or tactical decisions." Commonwealth v. Henderson,
486 Mass. 296, 306 (2020), quoting Commonwealth v. Ayala, 481
Mass. 46, 63 (2018). Here, the defendant has failed to show
that the decision not to call an expert to testify about the DNA
report was "manifestly unreasonable" when made. Rondeau, 378
Mass. at 413, quoting Adams, 374 Mass. at 728. There is no
affidavit from trial counsel or from any prospective expert
witness explaining their potential testimony about how the
presence of saliva in the condom would be helpful to the
defense. See Commonwealth v. Alicea, 464 Mass. 837, 850-851
(2013) ("claim of ineffective assistance of counsel for failure
to call an expert witness is generally doomed where [t]he
defendant's claim is not supported by any affidavits to disclose
the content of the omitted expert testimony" [quotation
omitted]). 11
11Because we find that there was no error, we do not reach the question of prejudice. However, even if we did, we are not persuaded that the defendant was prejudiced because both the defendant's and the victim's versions of the events included oral sex at some point, so they are both at least potentially consistent with saliva being found inside the condom.
11 b. Video evidence. Next, the defendant argues that his
counsel was ineffective because he did not realize until two
days before trial that a video from the night in question
depicted the second disputed sexual encounter, 12 as opposed to
the first undisputed consensual encounter. Before trial,
counsel believed the video depicted the first consensual sexual
encounter, and he moved in limine to introduce the video solely
for impeachment purposes. 13 However, on the second day of trial,
counsel argued for the first time that this video actually
depicted the second, disputed sexual encounter, and he moved to
have it admitted as substantive evidence of the victim's
consent.
Here, even assuming that counsel's failure to understand
the significance of the video fell below the standard of an
ordinary fallible lawyer, see Saferian, 366 Mass. at 96, we are
not persuaded that the defendant was prejudiced by this error.
The defendant was still able to argue that the video was of the
second encounter through his own testimony, and through
counsel's closing argument. The video was also admitted into
12 Counsel represented that he was made aware of this new information during a discussion with the defendant in preparation for trial. 13 The video was relevant for impeachment purposes because the
victim denied the existence of a sex tape during her Grand Jury testimony, but she can be seen in the video looking directly into the camera.
12 evidence and viewed by the jury. The defendant has not made a
showing that an earlier appreciation of the significance of the
video would have bolstered his argument or credibility. 14
c. Defendant's text chains. Next, the defendant argues
that his counsel was ineffective because he did not introduce
the defendant's text messages with other women into evidence.
He asserts the messages would have proven that he was cheating,
verified his account of the evening, and provided motive for the
victim to lie. However, even assuming that trial counsel fell
below accepted standards in failing to introduce that evidence
(a point we do not decide), where the defendant's text messages
were cumulative of other admitted evidence, we are not persuaded
that the defendant was prejudiced by his counsel's failure to
introduce them into evidence. See Commonwealth v. Don, 483
Mass. 697, 712 (2019) ("cumulative evidence . . . [is] unlikely
to sway the jury"); Breese v. Commonwealth, 415 Mass. 249, 252
(1993), citing Commonwealth v. Satterfield, 373 Mass. 109-115
(1977) (defendant must show that better work might have
accomplished something material for the defense). Here, it was
undisputed that the defendant was cheating on the victim and the
14We reject the defendant's argument that a timeline could have been created based on the video's timestamps because he does not point to any evidence that could have been used to identify the times at which any of the sexual contacts at issue here took place.
13 victim herself testified that she was upset when she found out
about his texting and calling other women.
d. Psychiatric records. Finally, the defendant argues
that his counsel was ineffective because he failed to obtain
access to the victim's psychological records from before the
incident, which he asserts were relevant to her credibility and
motive to lie. 15 Specifically, the defendant takes issue with
defense counsel's request that the court take no action on his
motion to reconsider the denial of his motion for access to the
victim's psychological records. We see nothing manifestly
unreasonable about counsel's decision in this regard.
To gain access to privileged mental health records, a
defendant must show "a good faith, specific, and reasonable
basis for believing that the records [would] contain exculpatory
evidence [that was] relevant and material to the issue of the
defendant's guilt." Commonwealth v. Bourgeois, 68 Mass. App.
Ct. 433, 436 (2007), quoting Commonwealth v. Fuller, 423 Mass.
216, 226 (1996). "[M]ental health records are not relevant
simply because they exist and a victim is referred to mental
health services at around the time she first revealed . . .
abuse." Commonwealth v. Jones, 478 Mass. 65, 69 (2017), citing
15The defendant argues that the victim's medical records were relevant to her credibility and motive to lie because she had a history of "self-mutilation, depression, alcoholism, and hyper- sexuality."
14 Bourgeois, supra at 437. Here, we are not persuaded that the
defendant would have been entitled to the victim's psychological
records from before the incident because "[t]he motion's broad
claims concerning the victim's lack of credibility as a result
of mental health problems are entirely speculative and lack the
specificity and reasonableness required" to gain access to the
privileged records. 16 Bourgeois, supra at 437. See Commonwealth
v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520
U.S. 1245 (1997) (failure to pursue futile motion not
ineffective assistance of counsel).
4. Conclusion. The judgment is affirmed. The order
denying the defendant's motion for new trial is affirmed.
So ordered.
By the Court (Hand, Hershfang & Brennan, JJ. 17),
Assistant Clerk
Entered: February 7, 2024.
16 To the extent the defendant argues that trial counsel erred by (1) failing to locate a witness that would have bolstered his case, (2) failing to object to the Commonwealth's offering of unauthenticated texts into evidence, and (3) failing to call a medical witness to testify about the lack of marks on the victim's body, we conclude that these claims do not rise to the level of appellate argument because the defendant does not cite to any authority in support of them. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). 17 The panelists are listed in order of seniority.