United States District Court, D. Massachusetts
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
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