Commonwealth v. Flavell

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COMMONWEALTH v. DAVID FLAVELL.

No. 23-P-932

Appeals Court of Massachusetts

September 23, 2024

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).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court in 2010, the defendant David Flavell, was convicted of assault with intent to rape second and subsequent offense, in violation of G. L. c. 265, § 24, as well as three other crimes arising from the same incident. The defendant's direct appeal from these convictions was dismissed with prejudice at the defendant's request. In 2021, the defendant filed a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), claiming, among other things, that his counsel was ineffective (1) because counsel went forward and pursued a lack of criminal responsibility defense without the support of an expert witness, and (2) because counsel failed to properly advise the defendant regarding the viability (or lack thereof) of that defense, which (allegedly) resulted in the defendant rejecting a plea offer he would have accepted if properly advised. The motion for a new trial was denied without an evidentiary hearing, and the defendant appeals. We affirm.

Background.

1. Incident and evidence at trial.

The present matter stems from an incident at Massachusetts General Hospital (MGH) that occurred on October 22, 2009. The Commonwealth's evidence included numerous witnesses, including the victim and expert witnesses, as well as physical evidence, surveillance video, and photographs.

The evidence showed that at around 3 ]?.M. that day, the defendant attacked the victim, an employee of MGH, inside a woman's restroom. The victim so testified, identifying the defendant in court. Other witnesses had seen the defendant outside the restroom in the days before the attack, and still other witnesses saw the defendant shortly before the attack pretending to drink from a water fountain near the restroom. Shortly before the attack, the defendant calmly told two women that the women's restroom was out of order. A handwritten sign taped onto the restroom door read: "Out of order. Do not use."

The victim went to use the restroom at around 3 P.M. The victim saw other women coming out of the restroom, and entered it. She testified that she could not see the whole "out of order" sign, as the sign was "falling off." When the victim entered the restroom, she was alone.

While the victim was in the bathroom stall, she heard paper rustling and tape being used. When the victim left the bathroom stall and washed her hands, the defendant calmly walked into the bathroom and began to look around. The victim asked the defendant if he realized he was in the women's restroom; the defendant calmly responded, "yes."

The defendant then approached the victim and assaulted her. He threw her back to the floor, and slammed her head against the floor. The victim tried to push the defendant off and yelled for help, but the defendant covered her mouth with his hands. The defendant then choked the victim while he had his knee on her chest. While the defendant kept one hand on the victim's throat, he pulled the front of the victim's pants, ripping off the pants' buttons and undoing the zipper. He told the victim to "[s]hut up and cooperate."

The victim continuously tried to get out the bathroom door, but the defendant stopped her. The last time the victim tried to run out of the bathroom the defendant grabbed her belt loop, but it snapped and the victim was able to escape into the hallway. When the victim escaped, her pants were lower than her hips, and her face was covered in blood.

The defendant exited the bathroom and walked down the hallway at a "normal pace" with blood on his hands. The victim pointed to the defendant, screaming, "He tried to hurt me." A security officer then apprehended the defendant. When the defendant was apprehended, he did not say anything or resist, but stood with a "blank stare" on his face. An officer noticed that the zipper of the defendant's pants was all the way down.

A bystander witnessed many of the above events. She heard loud screams coming from the women's restroom, opened the restroom door and saw the victim trying to pull up her pants, with her hips and buttocks exposed, while the defendant leaned over her. The defendant looked "steady and calm" while the victim, whose face was covered in blood, looked frightened and panicked. The victim pointed to the defendant and told the bystander, "He did it. He tried to hurt me." As the defendant proceeded down the hallway after the attack, the bystander pointed to the defendant.^[1]

A handwriting expert testified that in his opinion, the "out of order" sign was handwritten by the defendant. The sign was written on the back of a document titled, "Verification of Homelessness." The defendant's wallet contained an identification from a homeless shelter as well as pornographic material. Tape in the defendant's backpack was similar to the tape used to hang up the sign.

2. Dr. Robert Joss and plea negotiations.

On January 7, 2010, the defendant retained Dr. Robert Joss as an expert for the planned defense of lack of criminal responsibility due to mental disease or defect. The day before jury empanelment, April 20, 2010, during a motion hearing, defense counsel stated that he intended to call Dr. Joss to testify "to [the defendant's] mind[s]et during the events. It's going to be basically a McHoul defense here."

That same day, the Commonwealth informed the trial judge that if the defendant were to plead guilty, the Commonwealth would offer a recommended sentence of from nineteen to twenty years, followed by fifteen years of probation. Defense counsel responded, "We want to go to trial."

The next day, April 21, 2010, the day scheduled for trial, defense counsel relayed to the trial judge, outside the presence of the defendant, that Dr. Joss could not "legitimately come to an opinion as to [the defendant's] state of mind at the time of this incident." Defense counsel stated that he was informed of this that morning.^[2]

Defense counsel further requested, "The D.A. has offered 18 to 20 years with 15 years of probation. . . . [The defendant is] asking if the Court would consider a 15-year sentence if he's willing to plea to that[.]" The trial judge responded that he was prepared to give the defendant a sentence of from fifteen to eighteen years. Defense counsel responded, "It won't take long to talk to [the defendant] about it." The judge then took a recess so that defense counsel could speak to the defendant.

The recess lasted one hour or a little more. On returning, defense counsel did not mention a plea bargain, but instead requested a sixty-day continuance so that he could attempt to find another expert witness. The judge denied the request. Defense counsel then relayed, in the presence of the defendant, that defense counsel was still going forward with a defense of lack of criminal responsibility and was still planning on calling Dr. Joss to testify about the mental history of the defendant, but not to the defendant's mental state during the incident.

The trial began that day. In his opening statement, defense counsel stated that the defendant "is not a well man," encouraged the jury "to listen closely [and] make your own judgments as to the state of mind that [the defendant] was in at that time," and stated that the case was "an insanity defense." In his opening, defense counsel did not state that the defense would present any particular expert witnesses, including Dr. Joss, or evidence.

Defense counsel then presented a defense through cross-examination and argument. During the course of the trial, defense counsel consulted with two additional experts, but "[g]iven what their testimony [was] projected to be" defense counsel did not think that they were "going to help my case." Defense counsel subsequently decided to not present any witnesses.

Defense counsel was precluded from arguing lack of criminal responsibility at closing, based on the state of the evidence, and the judge also declined to instruct the jury on the same. In his closing, defense counsel argued that the defendant was guilty of assault and battery, but not assault with intent to rape or assault and battery with a dangerous weapon. Defense counsel also urged the jury to consider the defendant's mental condition.

Following trial, the jury convicted the defendant on all counts. The trial judge sentenced the defendant to twenty-five to thirty years on the charge of assault with intent to rape, second and subsequent, and ten years of probation from and after on the remaining charges.

3. Motion for a new trial.

The defendant filed a motion for a new trial over eleven years later, in October of 2021. The defendant argued that trial counsel rendered ineffective assistance in two areas. First he argued that trial counsel was ineffective in "promising the jury an 'insanity defense' based on the hope that one would materialize." Second, he argued that trial counsel's "ineffective...