Commonwealth v. Francis Watt. ( 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
22-P-127
COMMONWEALTH
vs.
FRANCIS WATT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 14, 2013, a jury convicted the defendant of
aggravated rape of a child and other charges, arising out of his
rape and assault of his autistic and mute twelve year old
granddaughter. The defendant appealed, challenging the
sufficiency of the evidence, and a panel of this court affirmed
the convictions in an unpublished decision. See Commonwealth v.
Watt, 87 Mass. App. Ct. 1122 (2015).
The defendant filed a motion for new trial in 2016, which
was denied without prejudice. He filed a second motion for new
trial in 2019 (second motion), arguing that he received
ineffective assistance of counsel and that the prosecution
failed to investigate potentially exculpatory evidence, which
was denied on July 3, 2020. He appealed from the order denying
his second motion; that appeal was stayed to permit him to file
a third motion for new trial (third motion). On May 17, 2021,
the defendant filed his third motion, in which he focused on
alleged shortcomings in the chain of custody of a video (with
audio) made by his twenty-seven year old granddaughter (the
victim's half-sister, Carrie1) that captured the misconduct
giving rise to his convictions.2 On September 13, 2021, the
third motion was denied, and on October 21, 2021, the
defendant's subsequent motion for reconsideration was denied.
On November 24, 2021, the defendant filed a status report, which
was treated as a notice of appeal from the orders denying his
third motion and his motion for reconsideration. This court
thereafter consolidated that appeal with the defendant's earlier
appeal from the order denying his second motion.
On appeal, the defendant argues that his trial counsel was
ineffective, that Carrie was acting as a government agent when
she recorded the video, and that there was insufficient evidence
to sustain the convictions. We affirm.
1 A pseudonym.
2 Prior to trial, the defendant's motion to suppress the video
made by Carrie was denied. The defendant's interlocutory appeal
was allowed, and on April 24, 2013, the Supreme Judicial Court
affirmed the denial of the motion to suppress, rejecting the
defendant's arguments that the video violated Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
§ 2511(2)(d) (2006) (Federal wiretap statute). Commonwealth v.
F.W., 465 Mass. 1, 2 (2013).
2
Discussion. 1. Ineffective assistance of counsel. We
review the defendant's ineffective assistance of counsel claim
to determine whether "(1) the 'behavior of counsel [fell]
measurably below that which might be expected from an ordinary
fallible lawyer' and (2) such failing 'likely deprived the
defendant of an otherwise available, substantial ground of
defence.'" Commonwealth v. Tavares, 491 Mass. 362, 365 (2023),
quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
"Where a new trial is sought based on a claim of ineffective
assistance of counsel, the burden of proving ineffectiveness
rests with the defendant." Commonwealth v. Kolenovic, 471 Mass.
664, 673 (2015), quoting Commonwealth v. Montez, 450 Mass. 736,
755 (2008). "If a defendant challenges the 'tactical or
strategic decisions[]' of trial counsel, he must establish them
as 'manifestly unreasonable.'" Commonwealth v. Shanley, 455
Mass. 752, 768 (2010), quoting Commonwealth v. Montanez, 410
Mass. 290, 295 (1991). We discern no "significant error of law
or other abuse of discretion" in the judge's rejection of these
claims. Commonwealth v. Forte, 469 Mass. 469, 488 (2014),
quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
3
First, based on a short answer to a question during an
evidentiary hearing,3 the defendant argues that counsel was
ineffective for failing to argue that Carrie was a government
agent when she set up the hidden camera. Because the defendant
raised this claim for the first time in his third motion, it is
waived. See Commonwealth v. Pisa, 384 Mass. 362, 366 (1981)
("Issues not raised at trial or pursued in available appellate
proceedings are waived"); Mass. R. Crim. P. 30 (c) (2), as
appearing in 435 Mass. 1501 (2001). Even if the issue were not
waived, the defendant has failed to show either that counsel's
performance fell below that of an ordinary fallible lawyer or
that it deprived the defendant of a substantial ground of
defense. The defendant has produced no evidence that Carrie was
prompted by the police to set up the video, or that there was
any reason for trial counsel to suspect that such prompting had
occurred. See Commonwealth v. Brzezinski, 405 Mass. 401, 404-
405 (1989) (fact that person speaks with police before taking
action adverse to defendant does not create agency
relationship); Commonwealth v. Rancourt, 399 Mass. 269, 274
(1987) ("An individual's actions will not be attributed to the
State if no promises are made for that individual's help and if
3 Defense counsel asked Carrie, "[D]id you ever speak to the
police about your concerns prior to making the video and audio
tape?" She responded, "Yes, I did."
4
nothing was offered to or asked of that individual").4 Moreover,
testimony from both Carrie and the detective who met with her
established that there was no contact between Carrie and the
police when she recorded the defendant.
Second, the defendant argues that his counsel's failure to
retain an expert for trial to explain to the jury certain
behaviors of autistic children deprived him of effective
assistance of counsel. Here, the defendant has offered no
affidavit from any expert setting forth the testimony or
theories on cross-examination that would have been pursued had
such an expert been retained. 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" [citation omitted]). In addition, trial counsel's
affidavit made clear that he made a valid tactical decision not
to pursue the testimony, which was not "manifestly unreasonable"
(citation omitted). Commonwealth v. Roberts, 423 Mass. 17, 20
(1996).5 As trial counsel explained, he could and did elicit
4 The defendant also substantively raises the claim that Carrie
was acting as a government agent, which fails for similar
reasons.
5 For the same reasons, the trial attorney's failure to seek to
obtain funds to obtain an expert witness did not amount to an
ineffective assistance of counsel. Further, as the motion judge
5
such testimony on cross-examination of other witnesses, a
strategy that avoided the risks that an expert witness could
have highlighted for the jury the victim's autism and that the
Commonwealth could have obtained favorable testimony on cross-
examination.
Third, the defendant claims that there were defects in the
chain of custody of the video and his trial counsel was
ineffective for not challenging its authenticity. "Alleged
defects in the chain of custody usually go to the weight of the
evidence and not its admissibility." Commonwealth v.
Viriyahiranpaiboon, 412 Mass. 224, 230 (1992). Further,
authenticity can be established by testimony that the item is
what its proponent represents it to be. Commonwealth v. Nardi,
452 Mass. 379, 396 (2008). There was ample testimony, at trial
and at the motion to suppress hearing, as to how the video was
created and how it came into police custody. And, most
importantly, the defendant's trial counsel did challenge the
admission of the video -- by filing a motion to suppress, a
motion to reconsider the denial of the motion to suppress, and
an interlocutory appeal to the Supreme Judicial Court.
Commonwealth v. F.W., 465 Mass. 1, 2 (2013).
held, and the trial counsel's affidavit stated, the defendant
privately funded his defense and was not eligible for court-
approved funds.
6
2. Sufficiency of the evidence. The defendant raises a
number of arguments claiming that there was insufficient
evidence to support his convictions. However, the defendant
already challenged the sufficiency of the evidence in his direct
appeal. A panel of this court concluded that the "evidence was
overwhelming" and affirmed his convictions. Watt, 87 Mass. App.
Ct. at 1122. The claims raised by the defendant are precluded
by direct estoppel. Commonwealth v. Rodriguez, 443 Mass. 707,
710 (2005).
Conclusion. The orders entered July 3, 2020, and September
13, 2021, denying the motions for new trial are affirmed. The
order entered October 21, 2021, denying the motion for
reconsideration is affirmed.
So ordered.
By the Court (Henry,
Desmond & Englander, JJ.6),
Clerk
Entered: June 27, 2023.
6 The panelists are listed in order of seniority.
7