Commonwealth v. Bryan Rauscher. ( 2023 )

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
21-P-450
COMMONWEALTH
vs.
BRYAN RAUSCHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Superior Court, the
defendant was found guilty of strangulation or suffocation and
two counts of assault and battery on a household member.1 On
appeal, in his Moffett brief, see Commonwealth v. Moffett, 383
Mass. 201, 208-209 (1981), the defendant argues that he did not
freely and voluntarily waive his right to a jury trial and to
testify, trial counsel was ineffective, and the victim's
testimony was not credible. We affirm.
Background. The defendant and the victim were in a dating
relationship. At 5:15 P.M. on December 19, 2018, Beverly police
officer William Cargile responded to a noise complaint at the
1 The Commonwealth dismissed so much of the assault and battery
indictments that alleged subsequent offense. The defendant was
found not guilty of a second count of strangulation or
suffocation and threatening to commit a crime.
victim's apartment. The victim told Cargile that there had been
a verbal argument but that no physical contact occurred.
Observing no injuries to the victim, Cargile left. Later that
night, the defendant "passed out" after drinking vodka. During
this time, the victim looked at the defendant's phone and
discovered messages and photographs from other women. The
victim tried to wake the defendant to no avail. She eventually
threw a glass of water in his face, and the defendant woke up.
He grabbed the victim's throat, slammed her into the floor,
punched her in the left eye, placed his forearm on her throat,
covered her nose and mouth with his hand and said, "this is how
people die." The victim broke free and ran to her bedroom to
call a friend. The defendant followed the victim upstairs and
"proceeded to bear hug" the victim on her bed but continued to
strangle her. The victim was again able to break free and run
to her friend's car, and the friend drove her to the police
station. At the station, Cargile observed that the victim's
hair was disheveled, she was crying, and that she had a swollen
left eye and red left cheek.
Discussion. 1. Jury trial waiver. The defendant argues
that his jury trial waiver was not free, intelligent, and
voluntary. Because the defendant signed a written jury waiver
form and the judge conducted a thorough colloquy, "the sole
focus of our review is whether the colloquy has provided an
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evidentiary record on which the judge could find the waiver was
voluntary and intelligent" (citation omitted). Commonwealth v.
Hendricks, 452 Mass. 97, 107-108 (2008). We conclude that it
does. The judge explained the constitutional rights that the
defendant was waiving and ensured that he had the opportunity to
consult with counsel before doing so. See id. at 106-108 & n.5.
The judge also inquired about the defendant's age, mental
illness and condition, absence of drug or alcohol use, and
education. While we understand that the defendant was
frustrated about the availability of jury trials during the
COVID-19 pandemic, this in and of itself does not render his
waiver involuntary and unintelligent.
2. Waiver of right to testify. The defendant next argues
that he was "tricked into not testifying" to avoid the admission
of evidence of his criminal record. While a defendant's right
to testify is fundamental, the "defendant bears the burden of
showing by a preponderance of the evidence that his waiver of
the right to testify was not valid" (citation omitted).
Commonwealth v. Garvin, 456 Mass. 778, 786 (2010). Here, the
judge conducted a detailed colloquy, ensured that the defendant
consulted with his attorney, and was satisfied with that advice.
That the defendant complains that his criminal record was a
factor in his decision not to testify shows that the defendant
understood the consequences of his decision. See Commonwealth
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v. McGillivary, 78 Mass. App. Ct. 644, 651 (2011) (defendant
reasonably accepted attorney advice not to testify "because such
testimony might open the door to evidence of prior
convictions").
3. Ineffective assistance of counsel. The defendant
argues that his trial counsel was not properly prepared for
trial and thus constitutionally ineffective for failing to (1)
meet with him in person before trial; and (2) call the victim's
friend as a witness. "[T]he preferred method for raising a
claim of ineffective assistance of counsel is through a motion
for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810
(2006). Here, it is presented in its weakest form, as it is
raised for the first time on appeal on the trial record alone.
See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
Generally, to prevail on an ineffective assistance of counsel
claim, a defendant must demonstrate that counsel's "serious
incompetency, inefficiency, or inattention . . . has likely
deprived the defendant of an otherwise available, substantial
ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96
(1974).
The record demonstrates that trial counsel was well
prepared and tried a thoughtful and deliberate case,
notwithstanding that he was unable to visit the defendant in
person due to COVID-19 restrictions. Specifically, trial
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counsel vigorously cross-examined the victim, eliciting
weaknesses in her account of the events. Likewise, through
cross-examination, he highlighted deficiencies in the police
investigation. Notably, trial counsel's efforts resulted in not
guilty verdicts on two of the indictments.
As to the failure to call the victim's friend as a witness,
the defendant fails to identify what information this witness
would have provided that would have been favorable to him. See
Commonwealth v. Watkins, 473 Mass. 222, 240 (2015) ("To
establish ineffective assistance of counsel based on a failure
to call additional witnesses, a defendant must show that the
purported testimony would have been relevant or helpful"
[quotation and citation omitted]). Trial counsel was not
ineffective.
4. Victim's testimony. Finally, the defendant claims that
the victim's testimony was not credible because of
inconsistencies between her testimony at an initial hearing and
at trial. However, it is the province of the fact finder to
determine the weight and credibility of evidence. See
Commonwealth v. Tavares, 484 Mass. 650, 656 (2020). To the
extent that the defendant's argument can be construed as a
sufficiency of the evidence argument, it fails for the same
reason. See Commonwealth v. Dumas, 83 Mass. App. Ct. 536, 538
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(2013) (inconsistencies "in the victim's testimony did not
render the Commonwealth's evidence legally insufficient").
Judgments affirmed.
By the Court (Meade, Blake &
Brennan, JJ.2),
Clerk
Entered: May 18, 2023.
2 The panelists are listed in order of seniority.
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