Commonwealth v. Aspen (Lawyers Weekly No. 11-045-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1379 Appeals Court COMMONWEALTH vs. RICHARD ASPEN. No. 12‑P‑1379. Norfolk. October 9, 2013. ‑ May 7, 2014. Present: Fecteau, Brown, & Hines, JJ. Rape. Indecent Assault and Battery. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Appeal. Witness, Expert, Credibility. Evidence, Expert opinion, Credibility of witness. Indictments found and returned in the Superior Court Department on August 9 and November 5, 1996. A motion for a new trial, filed on January 19, 2011, was heard by Thomas F. McGuire, Jr., J. John G. Swomley for the defendant. Marguerite T. Grant, Assistant District Attorney (Michele M. Armour, Assistant District Attorney, with her) for the Commonwealth. BROWN, J. A jury convicted Richard Aspen (the defendant) of (1) one count of rape of a child under sixteen; (2) six counts of rape; (3) two counts of indecent assault and battery; and (4) one count of assault and battery. The complainant is the defendant’s stepdaughter. The convictions were upheld on direct appeal. See Commonwealth v. Aspen, 53 Mass. App. Ct. 259 (2001).[1] The defendant moved for a new trial, asserting various claims, including ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The motion was denied. The defendant appeals. We now reverse the order denying the motion for a new trial. Discussion. 1. Ineffective assistance of trial counsel. The defendant contends that trial counsel was ineffective in (1) failing to call an expert witness to rebut the Commonwealth’s expert; (2) failing to call available character witnesses; (3) advising the defendant not to testify; and (4) failing to do more to impeach both the complainant and her mother. We apply the familiar test of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “We also consider whether there is ‘some showing that better work might have accomplished something material for the defense.’” Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272 (2009), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978). a. Failure to call an expert witness. First, the defendant asserts that trial counsel provided ineffective assistance in failing […]