Opinion
No. 15–P–763.
08-25-2016
COMMONWEALTH v. Fritz BLANCHARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Over the Commonwealth's objection, a judge of the Dorchester Division of the Boston Municipal Court allowed the defendant's motion for a new trial. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The Commonwealth appeals, claiming that the motion judge abused her discretion by failing to conduct an evidentiary hearing to determine whether the record could be reconstructed. We agree, and we vacate the judge's order and remand for further proceedings.
In 2006, a jury convicted the defendant of possession of a class B substance with intent to distribute and distribution of a class B substance. In August, 2014, the defendant filed a motion for a new trial alleging, among other things, that he is unable to present his claim on appeal because the transcript of the trial proceedings is not available and the record cannot be reconstructed. The defendant supported his motion with his own affidavit and an affidavit from appellate counsel. In it, counsel describes his efforts to obtain the trial transcript or otherwise reconstruct the trial proceedings by writing to the trial judge, trial counsel, and the prosecutor. The defendant attests that the absence of a trial transcript has rendered him unable to present a claim on appeal, and that his right of confrontation was violated under Melendez–Diaz v.. Massachusetts, 557 U.S. 305 (2009).
The jury found the defendant not guilty of a drug violation near a school or park, and the count charging the defendant with operating a motor vehicle with a suspended license was placed on file.
After a nonevidentiary hearing, and over the Commonwealth's objection, the judge allowed the defendant's motion for a new trial. The motion judge issued findings of fact “[b]ased upon the credible evidence presented, including information contained in the affidavits of the defendant and his appointed [appellate] counsel ... as well as documents contained in the trial court's file.” She found, among other things, that appellate counsel “diligently but unsuccessfully attempted to reconstruct the trial record in accordance with Commonwealth v. Harris, 376 Mass. 74 (1978) [,] and Mass.R.A.P. 8 [ (b), as amended, 437 Mass. 1602 (2002) ], since his appointment as the defendant's counsel [in 2011].”
We review the judge's ruling on the defendant's rule 30(b) motion for abuse of discretion or error of law. See Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). Our review extends to the judge's discretion in determining whether to rule on the defendant's motion without conducting an evidentiary hearing. See Commonwealth v. Almonte, 84 Mass.App.Ct. 735, 738 (2014).
“[A] judge may rule on a motion for a new trial without an evidentiary hearing where the motion and supporting materials do not raise a ‘substantial issue.’ “ Commonwealth v. Denis, 442 Mass. 617, 628 (2004), quoting from Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). “In determining whether a motion for a new trial warrants an evidentiary hearing, both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered.” Ibid. The defendant maintains that an evidentiary hearing was not necessary because his motion for a new trial and the accompanying affidavits did not raise a “substantial issue.” We disagree.
In his motion, the defendant “raises ‘an issue of constitutional importance,’ that readily qualifies as a serious issue.” Id. at 629, quoting from Commonwealth v. Licata, 412 Mass. 654, 661 (1992). The motion and supporting affidavits filed by the defendant “contain[ed] sufficient credible information to cast doubt on the issue.” Ibid. Given the adequacy of that showing, an evidentiary hearing was warranted. The question remains, however, whether the defendant has demonstrated that, under the circumstances, such an evidentiary hearing would have been futile nevertheless, and thus, unnecessary.
In the absence of a trial transcript, a new trial is generally warranted only when “the proceedings cannot be sufficiently reconstructed to present the defendant's claims.” Harris, supra at 79. Where a transcript is unavailable through no fault of the parties and no compelling reason exists as to why reconstruction of the transcript is not feasible, a hearing should be held in the trial court to attempt reconstruction of the record. See Commonwealth v. Pudder, 41 Mass.App.Ct. 930, 932 (1996). The passage of time alone does not render an evidentiary hearing in the trial court inadequate or unavailable. See Drayton v. Commonwealth, 450 Mass. 1028, 1029–1030 (2008).
In our view, the judge's finding that that the defendant made every effort to reconstruct the record lacks record support. Appellate counsel's independent investigation whether the record could be reconstructed, including his letter to the trial judge and counsel, was insufficient. “Where obligations to inquire and object exist, defense counsel must do more than inquire and register the defendant's objection over the back fence. Such casual steps do not suffice.” Commonwealth v. Bourdon, 71 Mass.App.Ct. 420, 428 (2008). The record does not demonstrate that the trial judge actually received counsel's letter, or was otherwise alerted to its contents and the need to reconstruct the proceedings. In addition, the defendant did not file a motion to reconstruct the record.
Nor does the record demonstrate that the trial judge or any other witnesses to the trial proceedings remain unavailable or are lacking memory of the proceedings so as to render any attempts at reconstruction hopeless. See Commonwealth v. Kelly, 57 Mass.App.Ct. 201, 215 (2003) (“[T]here was nothing to prevent reconstruction of [the trial] when participants were still available”). For example, the trial judge, although elevated to the Superior Court, remains a member of the judiciary. The record is devoid of any attempt to jog or test her memory. See ibid.
There also was no invitation by the judge to the parties to follow the procedure outlined in Harris, 376 Mass. at 78–79, for the reconstruction of the record. Contrast Commonwealth v. Flint, 81 Mass.App.Ct. 794, 800–801 (2012) (“The judge conducted evidentiary hearings, considered and received in evidence all available trial-related papers, including the notes made by trial counsel prior to and during the trial, and invited counsel to submit draft reconstructions”). On this record, we fail to see that the defendant has demonstrated to the judge that an attempt to reconstruct the proceedings at an evidentiary hearing would have “no hope of success.” Harris, supra at 78.
Finally, by ruling on the defendant's motion on the basis of simply the affidavits and other documentary evidence, the judge has deprived “the Commonwealth of an opportunity to challenge the [claims] presented in the affidavits” of the defendant and his appellate counsel. Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 395 (2012). Accordingly, we conclude the judge erred in allowing the defendant's new trial motion without an evidentiary hearing. We vacate the order and remand for further proceedings consistent with this memorandum and order.
On remand, the judge should hold a hearing to determine whether the record can be sufficiently reconstructed. If the proceedings cannot be “sufficiently reconstructed, [s]he shall so certify and [only then] allow the motion for a new trial.” Harris, supra at 79. See Pudder, 41 Mass.App.Ct. at 932.
To the extent the Commonwealth's brief and record appendix refer to matters outside the record before the motion judge, such matters were disregarded by the panel. The defendant's motion to strike such materials is allowed.
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So ordered.