Criminal – Ineffective assistance of counsel

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Where a defendant was unable to demonstrate that his defense counsel’s impeachment of a witness was ineffective and his decision to rely on certain testimony from a medical expert constituted ineffective assistance of counsel, a new trial was not warranted.

“Just after 10 P.M. on July 29, 2009, six month old Naiden Goitia (child) was pronounced dead at a hospital in Holyoke. The defendant, Edwin Goitia, was indicted for his murder. …

“On the day he died, several witnesses testified that the six month old behaved like ‘his normal self, happy and playful.’ …

“As the group returned to the apartment building between 6 and 6:45 P.M., they met the defendant, who told the mother that he … wanted to put the child to bed …

“The defendant carried the child upstairs to the mother’s apartment, while the mother remained downstairs …

“… The Commonwealth presented the testimony … which demonstrated that … [b]ecause the child had exhibited normal behavior at approximately 7 P.M., and was discovered unresponsive at 10 P.M., the injuries were sustained between those hours.

“… [W]e have reviewed the evidence without relying on any of the mother’s uncorroborated testimony, and conclude that any failure to impeach the mother with evidence of her written cooperation agreement with the Commonwealth did not create a substantial likelihood of a miscarriage of justice.  Without the mother’s testimony, the remaining evidence supporting the defendant’s conviction was overwhelming. …

“… Counsel was not ineffective in his impeachment of the mother, and the decision to rely on the defense medical expert’s testimony, rather than focusing on using the mother’s motive to blame the defendant for the child’s death, and to argue those points before the jury, was not manifestly unreasonable. See Commonwealth v. Smith, 456 Mass. 476, 482 (2010); Commonwealth v. Diaz, 448 Mass. 286, 288-289 (2007).

“There is no evidence to support the defendant’s claim that the charges were dismissed as a reward for the mother’s testimony. See Commonwealth v. Laguer, 448 Mass. 585, 594 (2007).  In these circumstances, the judge correctly rejected the claim as ‘entirely speculative’ and ‘unsupported by anything other than the defendant’s presumptions.’ See Commonwealth v. Rebello, 450 Mass. 118, 123-124 (2007). …

“The Commonwealth concedes that, prior to trial, it did not provide the defendant with a videotape of the crime scene, i.e., the apartment shared by the mother and her roommate. …

“… Because there is nothing to suggest that the videotape contained exculpatory evidence or that it would have affected the outcome of the trial, and nothing to demonstrate that the Commonwealth received photographic evidence from the roommate, a new trial is not required.  See Commonwealth v. Tucceri, 412 Mass. 401, 414 (1991).

“The judge determined that the child’s injuries, sustained approximately five months before his death, were reasonably connected to the facts of this case and sufficiently proximate in time to be probative. … The judge was correct in determining that a reasonable jury could find that the defendant inflicted the injuries the child sustained in February, 2009.  See Mass. G. Evid. section 104(b).

… [T]he judge found that counsel’s decision not to request an instruction was a tactical one:  it would have drawn the jury’s attention to the bruising, just before they began deliberation. … In the circumstances, the lack of an instruction did not give rise to a substantial likelihood of a miscarriage of justice. …

“During his closing argument, the prosecutor stated that the ‘credible, believable’ evidence told the jury what had happened. …

“… The trial judge was within her discretion to determine that, in the circumstances presented, the statements neither vouched for the credibility of a particular witness, nor implied that the prosecutor had any personal knowledge outside the evidence at trial to assert that the witness was believable.”

Commonwealth v. Goitia (Lawyers Weekly No. 10-181-18) (23 pages) (Lowy, J.) The Cases were tried before Sweeney, J., and a motion for a new trial was heard by her. Theodore F. Riordan, with Deborah Bates Riordan present, for the defendant; Bethany C. Lynch for the Commonwealth. (SJC-11572) (Oct. 18, 2018).

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