Commonwealth v. Daniel Lopez.

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-444

COMMONWEALTH

vs.

DANIEL LOPEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Daniel Lopez, brings this second appeal of

his judgments of conviction under G. L. c. 265, §§ 13B and 23.

In the first appeal, a panel of this court affirmed the

convictions on direct review but vacated an order denying the

defendant's motion for a new trial and remanded the motion for

an evidentiary hearing. Commonwealth v. Lopez, 96 Mass. App.

Ct. 1111 (2019). The issue was that in the absence of an

affidavit from trial counsel (which appellate counsel sought but

was refused), there was "no basis in the record to assign

strategic purpose as the basis for trial counsel's decision not

to engage or call an expert" to prepare his defense in a case

where multiple children alleged sexual abuse. Id. Pursuant to
our remand, a judge 1 held an evidentiary hearing at which trial

counsel and three expert witnesses testified. On the weight of

the testimony, the motion judge found that trial counsel's

strategic decisions not to call or consult an expert witness

were not manifestly unreasonable and did not amount to

ineffective assistance. Having now reviewed the motion judge's

additional findings and rulings, we affirm. We supply relevant

and necessary facts, which are based on the motion judge's

findings.

Discussion. To succeed on a claim of ineffective

assistance of counsel, a defendant must show both that trial

counsel's behavior fell "measurably below that which might be

expected from an ordinary fallible lawyer" and that such conduct

"likely deprived the defendant of an otherwise available,

substantial ground of defence." Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). Where the defendant's claim is based on a

strategic trial decision, the standard is whether that decision

was "manifestly unreasonable" when made. Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015). We review the motion

judge's decision for an error of law or abuse of discretion.

Commonwealth v. Brescia, 471 Mass. 381, 387 (2015). "When, as

here, the motion judge did not preside at trial, we defer to

1 The trial judge had retired so the motion was heard by a
different judge.

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that judge's assessment of the credibility of witnesses at the

hearing on the new trial motion, but we regard ourselves in as

good a position as the motion judge to assess the trial record."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

The defendant argues that the failure to call or even

consult an expert witness in a child sexual abuse case was, by

itself, ineffective assistance of counsel because it deprived

the defendant of substantial defenses. Namely, the defendant

contends that an expert witness would have been able to assist

the jury in understanding how and why children unknowingly make

false sexual abuse allegations, been essential in drafting

motions in limine, and helped trial counsel prepare a more

effective cross-examination of the children that would have

drawn out red flags and inconsistencies in their testimony.

Without this guidance, the defendant argues that trial counsel

was unable to provide a meaningful defense.

On this record, after an evidentiary hearing, we cannot say

that trial counsel's behavior fell measurably below that of an

"ordinary fallible lawyer." Saferian, 366 Mass. at 96. While

the Supreme Judicial Court has held that a failure to call on

expert help is ineffective assistance in cases involving the

causes of deaths of infants, 2 such a standard does not apply to

2 See Commonwealth v. Epps, 474 Mass. 743, 767 (2016) (trial
counsel's failure to consult and call expert to rebut

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the credibility of alleged victims' disclosures in child sexual

abuse cases. See Commonwealth v. Andrade, 98 Mass. App. Ct.

395, 399 (2020) (trial counsel's decision not to call expert

where such action would tip off Commonwealth to defense theory

was not manifestly unreasonable); Commonwealth v. Aspen, 85

Mass. App. Ct. 278, 280-281 (2014) (trial counsel's decision not

to call expert witness not manifestly unreasonable where it

would not have "added materially to the defendant's case").

Here, the motion judge credited trial counsel's testimony

at the evidentiary hearing that his primary trial strategy was

"implausibility," that is, that the children's accusations could

not have occurred the way they said they had. To bolster this

strategy, trial counsel avoided the admission of forensic

interviews where the children were younger and appeared

sympathetic and compelling, and the "piling on" of evidence

whereby the jury would hear the children accusing the defendant

multiple times. We cannot say that this was an unsound theory

of defense. Indeed, in a case that relied exclusively on the

testimony of the children, the defendant's only available

strategy was to undermine their credibility. While calling an

Commonwealth's expert medical testimony deprived defendant of
only available defense); Commonwealth v. Millien, 474 Mass. 417,
430 (2016) (trial counsel's failure to file motion for funds for
expert where client was indigent constitutes ineffective
assistance).

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expert witness may have strengthened the presentation of that

theory, it may also have cut against it, such as by opening the

door to admission of the video recordings of the forensic

interviews. 3 Further, in this case, the use of an expert witness

would not have changed the theory of the defense that trial

counsel ultimately pursued. Though it is possible that expert

testimony may have made that strategy more robust and effective,

it cannot be said that the defendant was deprived wholesale of a

substantial defense. Compare Commonwealth v. Epps, 474 Mass.

743, 767 (2016) (ineffective assistance where trial counsel did

not pursue third-party culprit defense and failed to rebut

expert medical testimony with evidence that child's injuries may

have been accidental).

Further, the motion judge did not abuse his discretion in

finding that trial counsel's decision not to consult with an

expert was not ineffective assistance. We do not require that

trial counsel "descend into every rabbit hole," Commonwealth v.

Tavares, 491 Mass. 362, 366 (2023), only that they make

"reasonable investigations" and "reasonable decisions." Id.,

quoting Strickland v. Washington, 466 U.S. 668, 691 (1984).

Here, trial counsel read scientific materials, consulted with

3 The interviews were excluded pursuant to the first complaint
doctrine in order to avoid repeating the narrative of abuse and
prejudicing the defendant. See Commonwealth v. Aviles, 461
Mass. 60, 67-70 (2011).

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experienced attorneys, diligently reviewed the case, and

prepared appropriately for trial. Though consultation with an

expert could have aided trial counsel in some respects, it was

not required to prepare effectively for trial. Moreover,

failing to consult with an expert witness did not deprive the

defendant of a substantial defense; at worst, it minimized the

efficacy of an otherwise sound strategy. 4

Order dated February 14,
2022, denying motion for
new trial, affirmed.

By the Court (Henry, Grant &
Brennan, JJ. 5),

Assistant Clerk

Entered: January 16, 2024.

4 The defendant's reliance on the determination in Commonwealth
v. Baran, 74 Mass. App. Ct. 256, 278 (2009), that trial
counsel's failures to call or investigate the use of expert
witnesses in a child sexual abuse case "standing alone" were
enough to show ineffective assistance, is unavailing. It is
true that failing to rebut expert testimony presented by the
Commonwealth may be ineffective assistance. Id. See
Commonwealth v. Jacobs, 488 Mass. 597, 606 (2021). However, in
Baran, supra at 267, the Commonwealth presented expert medical
and psychological testimony at trial and defense counsel neither
presented expert rebuttal testimony nor investigated whether to
use experts or investigators. In so doing, trial counsel ceded
a "decisive" advantage and therefore deprived the defendant of
his only likely defense. Id. at 277. Here, however, the
Commonwealth did not offer an expert witness, in part because
the defendant's trial counsel affirmatively considered whether
to involve expert assistance and then made strategic choices not
to hire or consult an expert.
5 The panelists are listed in order of seniority.

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