Civitarese v. Goguen

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY HILLMAN DISTRICT JUDGE

         Background

         Maurice Civitarese (“Civitarese” or “Petitioner”) has filed a Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (Docket No. 1)(“Petition”) against Colette Gardner, Superintendent, NCCI-Gardner^[1] (“Respondent”). Petitioner was convicted in Massachusetts Superior Court of rape of a child by force (four counts), indecent assault and battery on a person 14 years old or older (one count), assault with intent to rape a child (one count), indecent assault and battery of a person under 14 (four counts), and open and gross lewdness (one count). He was sentenced to 17-25 years. Petitioner filed a post-trial motion for new trial under Mass.R.Crim.P 30(b)(“Rule 30(b) Motion”), which was denied. The Massachusetts Appeals Court (“MAC”) consolidated his direct appeal and his appeal from the denial of his Rule 30(b) motion. The MAC affirmed his convictions and the denial of his motion for new trial. The Supreme Judicial Court of Massachusetts (“SJC”) denied his application for further appellate review (“ALOFAR”). He then filed his timely Petition in this Court asserting the following grounds for relief:

Ground One : Petitioner was denied his Sixth Amendment Right to effective assistance of counsel because his lawyer stated in his opening statement that the victims had been assaulted by other individuals, but had no admissible evidence so support this contention. Petitioner was prejudiced by counsel's statement because it effectively conceded that the victims had been sexually assaulted and shifted the burden to Petitioner to identify the culprits.

Ground Two : The trial court deprived him of his constitutional right to testify in his own behalf because his lawyer's advice that he not testify was inadequate, that is, such advice constituted ineffective assistance of counsel. More specifically, his lawyer did not prepare him to testify and convinced him not to do so first, because the jury would learn of his prior record, and second, because the judge would impose a longer sentence if he were convicted and the judge believed he testified falsely. This advice was erroneous.

         Civitarese has exhausted state-court remedies with respect to both grounds for relief. For the following reasons, the Petition is denied.

         Facts ^[2]

         The Underlying Crimes

         The evidence presented at trial was that Civitarese sexually assaulted and raped two young girls, K and S, while he was the live-in boyfriend of K's mother and served as K's and her siblings' primary caretaker while K's mother was working. S was a friend of the family who had first met K's mother when she was 11 years old. S, who had a “brother/sister relationship” with K and her siblings, spent many weekends at K's family's home, and would often “sleep over.” Civitarese's abuse of K started when she was six or seven years old and ended when she was approximately thirteen. It usually occurred when her mother was at work and her brothers were playing outside or playing video games in their room. S was approximately twelve or thirteen when the defendant assaulted her. Both victims were sexually assaulted in the family home, in either K's bedroom or the bedroom Civitarese shared with K's mother. Essentially, the assaults included touching and fondling of genitals; K was forced to perform oral sex on Civitarese; digital penetration of both girls; and penile penetration of S. Civitarese told K to keep what they were doing a secret, and said that if she told she “would get taken away again” from her mother.^[3] Civitarese told S, during the rapes, that he loved her, and not to tell K's mother because she “would get mad.” K's abuse stopped when Civitarese moved out of the family home after a break-up with K's mother; S's abuse stopped after Civitarese raped her and she stopped sleeping at the family's home.

         Post-Trial Proceedings

         On June 21, 2012, Civitarese filed a direct appeal from his conviction to the MAC.^[4] On October 7, 2013, Civitarese filed his Rule 30(b) Motion asserting two claims for relief: (1) his lawyer rendered constitutionally ineffective assistance of counsel by making a promise in his opening statement that other people committed the crimes charged, but then never attempted to introduce such evidence at trial; and (2) Civitarese's decision not to testify was not voluntary and knowing because his lawyer erroneously advised him that if he testified at trial, the jury would learn of his prior drug convictions and if the trial judge found he gave false testimony, could punish him by giving him a harsher sentence; Civitarese relied on this erroneous advice in deciding not to testify. The MAC stayed Civitarese's appeal pending disposition of his motion for new trial.

         In support of his Rule 30(b) Motion, Civitarese contended that his lawyer made the third-party culprit evidence the centerpiece of his defense. More specifically, trial counsel had become aware (from Civitarese) that K's mother had been sexually abused years before by her brother Victor, and that K saw her Uncle Victor at family gatherings at a campground in New Hampshire. His lawyer also learned that when she was 15, S had started dating a much older man who she later married. Civitarese's lawyer theorized that K and S had blamed Civitarese for the sexual assaults to protect in K's case, her Uncle Victor, and in S's case, her boyfriend. He did not file a motion in limine seeking advance approval from the judge to explore this theory because he was afraid the judge would rule that such evidence would not be admissible. He therefore raised the issue in his opening statement by communicating to the jury that during the trial, he would produce evidence of “the third-party culprits.” The Commonwealth objected on relevancy grounds. The trial judge determined that he could not determine relevancy at that time, but cautioned Civitarese's lawyer about making promises to jurors that remain unfulfilled. Civitarese's lawyer went on to tell the jurors that K's mother and aunt Theresa had ben both been sexually abused by Uncle Victor who K came into contact regularly. He told the jury that K's mother would testify about the abuse and the similarities with the abuse K suffered. He further told the jury that S. had been bragging to other people that she had started dating somebody 18 years older than her when she was 15, that she saw this man during the “time period” and she later married him. However, at trial, the jury never heard any evidence that Uncle Victor had sexually assaulted K's mother. As to his claim that he did not make a knowing and voluntary waiver of his right to testify on his own behalf, Civitarese asserted that his lawyer advised him that he had a right to testify and that the decision was ultimately his to make. At the same time, his lawyer advised him that he did not think Civitarese would make a good witness because he was nervous and emotional and would go off on “digressions.” He also warned Civitarese that his testimony would be problematic because the jury would likely hear about his prior convictions and because judge's sometimes give defendants harsher sentences if they believe they lied on the stand. On the last day of trial, Civitarese remained undecided-his wife and other family members had urged him to testify, but his lawyer urged him not to do so. Based on his lawyer's advice, he decided not to testify. When asked by the trial judge in a colloquy regarding his right to testify, Civitarese stated that he understood he had “an absolute right to testify or not to testify, ” and informed the judge he did not wish to testify. After holding an evidentiary hearing, the trial judge denied the Rule 30(b) Motion.

         As to Civitarese's claim that he received ineffective assistance of counsel because his lawyer indicated in his opening statement that he would present third-party culprit evidence the trial judge made the following specific findings of fact and conclusions of law^[5]:

1. Civitarese's lawyer was an experienced criminal attorney who had tried over 200 criminal cases. He settled on three possible defense strategies: (a) due to the families' living situation which involved multiple moves and separation of the family members, Civitarese had limited contact with the victims; (b) K had frequent contact with a Department of Social Services (now Department of Children and Families) social worker, a school counselor, teachers and family members to whom she never disclosed that she had been sexually abused by Civitarese, and (c) the third-party culprit defense^[6].

2. Civitarese's lawyer attempted to raise the third-party culprit defense in his opening statement. The Commonwealth objected and the objection was overruled.^[7] Both K and her mother testified at trial about K's contacts with Uncle Victor. Both testified that K attended family gatherings with Uncle Victor in New Hampshire and that K was never alone with him. Because there was no evidence that K had been alone with Uncle Victor, the trial judge concluded that the sexual abuse of K's mother and aunt, which had occurred many years before, was not relevant and refused to allow the defense to pursue this line of inquiry.

3. It would have been better if Civitarese's lawyer had filed a motion in limine to test the admissibility of the third-party culprit theory before mentioning it in his opening statement. At the same time, Civitarese's lawyer's duty “was to represent his client zealously and according to his best judgment.” Civitarese's lawyer did not file a motion in limine because he wanted to preserve the advantage of surprise and because he felt that the judge would be more receptive to admitting the evidence once a foundation had been laid.

4. Civitarese's lawyer took a calculated risk-to raise the issue in a motion in limine would have likely resulted in his being barred from mentioning the third-party culprit theory in his opening statement. In his judgment that would have forfeited an important advantage of planting reasonable doubt in the jury's mind. Moreover, although Civitarese's lawyer mentioned K's abuse by Uncle Victor in his opening statement, he did not dwell on it and intentionally refrained from promising specific testimony from a particular witness, less the evidence be excluded.

5. The judge cited to SJC caselaw governing a lawyer's failure to deliver evidence after promising to do so in his opening statement: such conduct does not automatically constitute ineffective assistance of counsel, rather the court must look to whether such conduct reflected inadequate preparation, incompetency or inattention, and whether the subsequent failure to produce the evidence was a decision forced upon the lawyer over which he had no control, or was otherwise supported by “strategic justifications.” Commonwealth v. McMahon, 443 Mass. 409, 425 (2005)(citations omitted). The judge concluded that while in hindsight the lawyer's judgment was vulnerable to criticism, his reasons for proceeding as he did were well founded and that his failure to “deliver” on the “promise” made in his opening statement did not result from incompetence, lack of preparation or inattention, but rather from a ruling by the court. The lawyer could not have known at the time he made the remarks in his opening statement that he would not be able to lay a sufficient foundation to pursue the line of inquiry at trial. Moreover, the other two line of defenses were left intact and were presented thoroughly and capably.

6. The trial judge determined that Civitarese's lawyer took a strategic risk that did not pay out, but whose likely damage to the defense was minimal at worst. Thus, he concluded that Civitarese's lawyer's judgment on the matter did not fall below the standard of the average fallible attorney and mention of the issue in his opening statement likely did not damage his chance on other, more viable theories of defense. The trial judge again cited to McMahon in which the SJC quoted Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052 (1984), the seminal Supreme Court case on ineffective assistance of counsel:

There is, in any opening statement, a risk that promised evidence will not materialize. The decision whether to make an opening statement, and, if so, what details to include in that statement, are purely strategic, and the strategic benefit of announcing specific anticipated testimony in the opening statement may outweigh the risk that the testimony will not be available. ‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengable.'

As to Civitarese's claim regarding his decision not to testify, the trial judge made the following findings of fact and conclusions of law:

1. From the start of his representation of Civitarese, his lawyer thought he would make a problematic witness because he appeared nervous and distractible tending to ramble and stray from the questions asked.

2. Civitarese's lawyer was concerned about two issues he feared might come up were he to testify. K's and S's mothers had met when both were visiting a correctional facility at which Civitarese was incarcerated. In addition to being incarcerated, Civitarese also had substance abuse issues for which he received in patient treatment while he knew K's family. That Civitarese did not have access to K during the relevant time period was one aspect of the defense's strategy. Civitarese's lawyer was understandably concerned that evidence of his client's drug use would be damaging to his case and that a detailed ...