Commonwealth v. Pekings Aziwung.

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-1119

COMMONWEALTH

vs.

PEKINGS AZIWUNG.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a six-person jury trial in the Superior Court, the

defendant was convicted of rape. 1 Shortly after sentencing, the

defendant moved for a new trial. In this consolidated matter

the defendant appeals from the conviction and from the order

denying his new trial motion, arguing that he was coerced into

waiving his constitutional right to a twelve-person jury, and

that his counsel was ineffective for a variety of reasons. We

affirm.

Background. We briefly summarize the trial evidence,

reserving certain matters for later discussion. At the time of

the rape, the defendant and the victim were dating. The victim

was house sitting one weekend, and she invited the defendant

1 The jury acquitted the defendant on one count of strangulation
or suffocation.
over to spend the night with her there. At some point that

evening, the victim and the defendant engaged in consensual

sexual intercourse. After this first sexual encounter, the

defendant went to the bathroom. The victim and defendant gave

divergent testimony about what happened after the defendant

returned from the bathroom.

The victim testified that she started feeling ill while the

defendant was in the bathroom, and that when he returned, she

told him that she did not want to have sex anymore. According

to her, the defendant responded that he "wasn't done," and he

held her down, strangled her, and raped her. By contrast, the

defendant testified that when he returned from the bathroom, the

victim performed oral sex on him, put a condom on him, and the

two again engaged in consensual sexual intercourse. At some

point during either the first or second encounter, the defendant

video recorded the victim on his phone. 2

The victim allowed the defendant to stay the night, and,

after he fell asleep, she looked through his phone. On his

phone, she found text messages that the defendant had sent to

other women indicating that he was cheating on her. The victim

was upset by this discovery, and she confronted the defendant

about it. The victim drove the defendant home in the morning.

2 It is undisputed that this video depicted consensual sex.

2
It is also undisputed that over the course of the following

days, the defendant repeatedly contacted the victim

"apologizing, saying the devil made him do it, and [that] he was

drinking too much, and that he was really sorry, and he knew he

did something really bad." On one occasion, he went to the

victim's parents' house and cried in their driveway asking for

forgiveness. 3

Two days after the encounters, the victim went to the

emergency room, where a registered nurse completed an evidence

collection kit and sexual assault examination. During the

examination, a condom was recovered from inside the victim's

vagina.

Discussion. 1. Standard of review. We review the denial

of a motion for new trial for a "significant error of law or

other abuse of discretion," Commonwealth v. DiBenedetto, 458

Mass. 657, 664 (2011), and will only disturb the decision where

it is "manifestly unjust or the trial was infected with

prejudicial constitutional error." Commonwealth v. Imbert, 479

Mass. 575, 581 (2018), quoting Commonwealth v. Jenkins, 458

Mass. 791, 803 (2011).

3 The victim's father recorded the defendant's apology and the
video was admitted into evidence at trial and played for the
jury.

3
2. Right to a jury trial. The defendant first argues that

the denial of his motion for new trial should be vacated because

he was denied his constitutional right to a fair trial; he

contends that the waiver of his right to a twelve-person jury

was not voluntary. More specifically, he asserts that he was

coerced into waiving this right when the trial judge stated that

he would "consider putting [the defendant] on house arrest" if

the defendant consented to a six-person jury trial. Because we

are not persuaded that there is a constitutional right to a

twelve-person jury, and we conclude that even if such a right

existed, the defendant's waiver of this right was knowing and

voluntary, we affirm.

First, there is no Federal constitutional right to be tried

by a jury of twelve. 4 See Williams v. Florida, 399 U.S. 78, 102-

4 The defendant erroneously relies on Ballew v. Georgia, 435 U.S.
223, 229 (1978), and Patton v. United States, 281 U.S. 276, 291-
293 (1930), for the proposition that his Sixth Amendment right
to be tried by a jury of his peers necessarily implies a right
to a twelve-person jury. Ballew does not support this argument;
the court in that case held that "the purpose and functioning of
the jury in a criminal trial is seriously impaired, and to a
constitutional degree, by a reduction in size below six
members," not twelve. 435 U.S. at 239 (emphasis added).
Similarly, the holding in Patton, although supporting the
defendant's argument, was expressly overturned when the court
held that a six-person jury was constitutional because "the fact
that the jury at common law was composed of precisely 12 is a
historical accident, unnecessary to effect the purposes of the
jury system and wholly without significance 'except to the
mystics.'" Williams v. Florida, 399 U.S. 78, 102 (1970),
quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968) (Harlan,
J., dissenting).

4
103 (1970). While it remains undecided whether there is a State

constitutional right to be tried by a jury of twelve under art.

12 of the Massachusetts Declaration of Rights, see Opinion of

Justices, 360 Mass. 877, 885 (1971), citing Williams, supra

(six-person juries constitutional in District Courts, but

constitutionality of six-person juries in Superior Court remains

undecided), we need not decide that question today. This is

because even assuming without deciding that defendants have a

State constitutional or statutory right to a twelve-person jury

in the Superior Court, 5 we conclude that in this case, the

defendant validly waived that right. See Commonwealth v.

Nicoll, 452 Mass. 816, 820 (2008). See also Mass. R. Crim. P.

19 (b), as appearing in 486 Mass. 1501 (2020).

The waiver of a right to a jury trial must be "knowing and

voluntary." Commonwealth v. Bennefield, 482 Mass. 250, 256

(2019), citing Ciummei v. Commonwealth, 378 Mass. 504, 507

5 Massachusetts statutes and rules reflect that twelve is the
default number of deliberating jurors for criminal cases tried
in the Superior Court; however, "[u]pon a finding of cause, the
trial judge may impanel a lesser number of jurors." G. L.
c. 234A, § 68. See Mass. R. Crim. P. 20 (d) (2) (selection of
twelve jurors for deliberation from larger number that includes
alternates). The defendant does not assert a violation of his
statutory rights. Cf. G. L. c. 218, § 26A (specifying jury of
six for District Court cases). See Commonwealth v. A Juvenile
(No. 2), 384 Mass. 390, 394 (1981), citing G. L. c. 119, § 56
(e) ("The statutory right to a jury of twelve [is] a substantial
right," and violations of that right require reversal, even in
the absence of prejudice).

5
(1979). In making this determination, the trial judge must

engage in a colloquy with the defendant to ensure "that the

defendant has conferred with his counsel about the waiver, and

that he has not been pressured or cajoled and is not intoxicated

or otherwise rendered incapable of rational judgment." Id. at

256 n.4, citing Ciummei, supra at 509-510 "So long as a

colloquy occurs, the sole focus of our review is whether the

colloquy provided an evidentiary record on which the judge could

find the waiver was voluntary and intelligent." Commonwealth v.

Hendricks, 452 Mass. 97, 107-108 (2008).

Here, the defendant himself first raised the possibility of

waiving any right to a twelve-person jury trial. The defendant

and his counsel also signed two waiver forms asserting that the

waiver was knowing and voluntary. 6 Additionally, and perhaps

most importantly, judges conducted three colloquies with the

defendant regarding his waiver. First, on October 21, 2020, a

judge (pretrial judge) conducted a thorough colloquy on the

record in which he informed the defendant of his "practical and

potentially constitutional" right to a jury of twelve persons. 7

6 These forms were titled "Waiver of Right to be Tried by a Jury
of 12 Persons," and "Defendant's Waiver of Jury of 12 and
Consent to Jury of 6."
7 The judge also inquired as to the defendant's educational,

employment, and medical history; the extent of the consultation
with his attorney; his understanding of the charges against him
and potential penalties; and his understanding of the right that
he was waiving.

6
Second, on November 3, 2020, the pretrial judge conducted

another colloquy. 8 Third, on the first day of trial, the trial

judge asked the defendant about the two waiver forms, the two

prior colloquies, and the defendant's current understanding of

and willingness to waive any right to a twelve-person jury.

During each of these colloquies, the defendant asserted that his

waiver was being made knowingly and voluntarily. Because the

judges were permitted to rely on the defendant's assertions

during the colloquies and on the waiver forms, we affirm their

separate findings that the waiver was made knowingly and

voluntarily. See Commonwealth v. Hernandez, 42 Mass. App. Ct.

780, 785 (1997).

Furthermore, we reject the defendant's argument that he was

coerced into waiving his right to a twelve-person jury. The

record makes clear that the pretrial judge's statement that he

would "consider" house arrest only if the defendant consented to

a six-person jury trial was a practical response to the

realities of the COVID-19 pandemic, and not a threat of greater

punishment (or, alternatively, a promise of more lenient

treatment in exchange for the waiver). 9 See Brangan v.

8 This colloquy was more truncated than the first.
9 At the time of the defendant's waiver, and as a result of the
COVID-19 pandemic, all twelve-person jury trials had been
continued indefinitely; on the other hand, six-person jury
trials were still ongoing. In these circumstances, the judge
reasoned that if the defendant consented to a six-person jury,

7
Commonwealth, 477 Mass. 691, 701-702 (2017) (pretrial detention

is not a form of punishment); Commonwealth v. Damiano, 14 Mass.

App. Ct. 615, 619 n.8 (1982) ("a claim of coercion must be

supported by facts appearing in the record and not based solely

on a defendant's subjective beliefs or complaints"). Cf.

Commonwealth v. Lebon, 37 Mass. App. Ct. 705, 706-708 (1994).

Thus, we agree with the motion judge that the defendant's waiver

was made knowingly and voluntarily, without coercion.

3. Ineffective assistance. To establish a basis for

relief on a claim of ineffective assistance of counsel, the

defendant must show that (1) counsel's conduct fell below the

standard of an ordinary fallible lawyer, and (2) that

shortcoming prejudiced him in some way. Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "[A]rguably reasoned

tactical or strategic judgments" do not amount to ineffective

assistance of counsel unless they were "manifestly unreasonable"

when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979),

quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

Where, as here, we discern no "significant error of law or other

abuse of discretion" in the judge's rejection of the defendant's

this would allow for a more "prompt trial," and therefore "the
burden of supervising [the defendant] would be relatively
minimal." Given the pretrial judge's determination that the
defendant was otherwise not a good candidate for long-term
pretrial release, the judge was only willing to consider house
arrest in these limited circumstances.

8
ineffective assistance claims, we affirm. Commonwealth v.

Forte, 469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace,

397 Mass. 303, 307 (1986).

a. Saliva in the condom. The defendant first argues that

his counsel was ineffective because he failed to highlight

critical evidence that the victim's saliva was found inside the

condom that was recovered during the sexual assault examination,

and because he failed to call an expert to testify about this

evidence. The defendant asserts that this evidence would have

made him appear more credible to the jury because it was

consistent with his version of events -- that the victim engaged

in oral sex with him during the second encounter before he put

on the condom and had consensual intercourse with her. He

similarly asserts that the evidence would have made the victim

appear less credible because it was inconsistent with her

version of events -- that the defendant came back from the

bathroom, put on a condom, and raped her. For several reasons,

we disagree with the defendant's characterization of the

evidence and conclude that it was reasonable for counsel not to

explore the saliva evidence further or to call an expert witness

to testify about the deoxyribonucleic acid (DNA) report. See

Strickland v. Washington, 466 U.S. 668, 691 (1984) ("counsel has

a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary").

9
First, it appears that counsel's failure to develop this

evidence more thoroughly was reasonable because, despite the

defendant's contention, the DNA report does not "clearly

state[]" that the victim's saliva was found inside the condom.

Rather, it states that "[a] female STR DNA profile was obtained"

from the condom, and that this DNA profile matched the victim.

In arguing that counsel had reason to investigate this fact

further, the defendant relies solely on evidence that was

introduced during trial, including the testimony of the forensic

scientist who conducted the DNA analysis and a stipulation by

the parties. 10 Thus, where defense counsel had no reason to know

about the potential presence of saliva in the condom before

trial, we discern no error in counsel's failure to investigate

that fact further. See Strickland, 466 U.S. at 691 ("In any

ineffectiveness case, a particular decision not to investigate

must be directly assessed for reasonableness [under] all the

circumstances"). See also Wiggins v. Smith, 539 U.S. 510, 521-

522 (2003).

10The parties stipulated that "[t]he evidence collection kit
contained vaginal swabs, slides and clothing of [the victim],
and a condom obtained as a result of a physical examination
. . . [which] were examined and tested positive for the presence
of saliva, sperm cells and seminal fluid protein." The forensic
scientist testified that saliva was found inside the interior of
the condom.

10
Furthermore, even if defense counsel knew or should have

known about the potential presence of saliva in the condom

before trial, there was no error in his decision not to call an

expert to testify about this fact. "The decision to call, or

not to call, an expert witness fits squarely within the realm of

strategic or tactical decisions." Commonwealth v. Henderson,

486 Mass. 296, 306 (2020), quoting Commonwealth v. Ayala, 481

Mass. 46, 63 (2018). Here, the defendant has failed to show

that the decision not to call an expert to testify about the DNA

report was "manifestly unreasonable" when made. Rondeau, 378

Mass. at 413, quoting Adams, 374 Mass. at 728. There is no

affidavit from trial counsel or from any prospective expert

witness explaining their potential testimony about how the

presence of saliva in the condom would be helpful to the

defense. 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" [quotation

omitted]). 11

11Because we find that there was no error, we do not reach the
question of prejudice. However, even if we did, we are not
persuaded that the defendant was prejudiced because both the
defendant's and the victim's versions of the events included
oral sex at some point, so they are both at least potentially
consistent with saliva being found inside the condom.

11
b. Video evidence. Next, the defendant argues that his

counsel was ineffective because he did not realize until two

days before trial that a video from the night in question

depicted the second disputed sexual encounter, 12 as opposed to

the first undisputed consensual encounter. Before trial,

counsel believed the video depicted the first consensual sexual

encounter, and he moved in limine to introduce the video solely

for impeachment purposes. 13 However, on the second day of trial,

counsel argued for the first time that this video actually

depicted the second, disputed sexual encounter, and he moved to

have it admitted as substantive evidence of the victim's

consent.

Here, even assuming that counsel's failure to understand

the significance of the video fell below the standard of an

ordinary fallible lawyer, see Saferian, 366 Mass. at 96, we are

not persuaded that the defendant was prejudiced by this error.

The defendant was still able to argue that the video was of the

second encounter through his own testimony, and through

counsel's closing argument. The video was also admitted into

12 Counsel represented that he was made aware of this new
information during a discussion with the defendant in
preparation for trial.
13 The video was relevant for impeachment purposes because the

victim denied the existence of a sex tape during her Grand Jury
testimony, but she can be seen in the video looking directly
into the camera.

12
evidence and viewed by the jury. The defendant has not made a

showing that an earlier appreciation of the significance of the

video would have bolstered his argument or credibility. 14

c. Defendant's text chains. Next, the defendant argues

that his counsel was ineffective because he did not introduce

the defendant's text messages with other women into evidence.

He asserts the messages would have proven that he was cheating,

verified his account of the evening, and provided motive for the

victim to lie. However, even assuming that trial counsel fell

below accepted standards in failing to introduce that evidence

(a point we do not decide), where the defendant's text messages

were cumulative of other admitted evidence, we are not persuaded

that the defendant was prejudiced by his counsel's failure to

introduce them into evidence. See Commonwealth v. Don, 483

Mass. 697, 712 (2019) ("cumulative evidence . . . [is] unlikely

to sway the jury"); Breese v. Commonwealth, 415 Mass. 249, 252

(1993), citing Commonwealth v. Satterfield, 373 Mass. 109-115

(1977) (defendant must show that better work might have

accomplished something material for the defense). Here, it was

undisputed that the defendant was cheating on the victim and the

14We reject the defendant's argument that a timeline could have
been created based on the video's timestamps because he does not
point to any evidence that could have been used to identify the
times at which any of the sexual contacts at issue here took
place.

13
victim herself testified that she was upset when she found out

about his texting and calling other women.

d. Psychiatric records. Finally, the defendant argues

that his counsel was ineffective because he failed to obtain

access to the victim's psychological records from before the

incident, which he asserts were relevant to her credibility and

motive to lie. 15 Specifically, the defendant takes issue with

defense counsel's request that the court take no action on his

motion to reconsider the denial of his motion for access to the

victim's psychological records. We see nothing manifestly

unreasonable about counsel's decision in this regard.

To gain access to privileged mental health records, a

defendant must show "a good faith, specific, and reasonable

basis for believing that the records [would] contain exculpatory

evidence [that was] relevant and material to the issue of the

defendant's guilt." Commonwealth v. Bourgeois, 68 Mass. App.

Ct. 433, 436 (2007), quoting Commonwealth v. Fuller, 423 Mass.

216, 226 (1996). "[M]ental health records are not relevant

simply because they exist and a victim is referred to mental

health services at around the time she first revealed . . .

abuse." Commonwealth v. Jones, 478 Mass. 65, 69 (2017), citing

15The defendant argues that the victim's medical records were
relevant to her credibility and motive to lie because she had a
history of "self-mutilation, depression, alcoholism, and hyper-
sexuality."

14
Bourgeois, supra at 437. Here, we are not persuaded that the

defendant would have been entitled to the victim's psychological

records from before the incident because "[t]he motion's broad

claims concerning the victim's lack of credibility as a result

of mental health problems are entirely speculative and lack the

specificity and reasonableness required" to gain access to the

privileged records. 16 Bourgeois, supra at 437. See Commonwealth

v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520

U.S. 1245 (1997) (failure to pursue futile motion not

ineffective assistance of counsel).

4. Conclusion. The judgment is affirmed. The order

denying the defendant's motion for new trial is affirmed.

So ordered.

By the Court (Hand,
Hershfang & Brennan, JJ. 17),

Assistant Clerk

Entered: February 7, 2024.

16 To the extent the defendant argues that trial counsel erred by
(1) failing to locate a witness that would have bolstered his
case, (2) failing to object to the Commonwealth's offering of
unauthenticated texts into evidence, and (3) failing to call a
medical witness to testify about the lack of marks on the
victim's body, we conclude that these claims do not rise to the
level of appellate argument because the defendant does not cite
to any authority in support of them. See Mass. R. A. P. 16 (a)
(9) (A), as appearing in 481 Mass. 1628 (2019).
17 The panelists are listed in order of seniority.

15