Opinion
13-P-1058
11-19-2014
COMMONWEALTH v. JAMES NEWMAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On June 24, 1993, the defendant, James Newman, was indicted by a grand jury, pursuant to G. L. c. 265, § 13B, on three counts of indecent assault and battery on a child under the age of fourteen (against his six year old niece). On February 6, 1995, the defendant pleaded guilty on all three counts. He was sentenced to two and one-half years in the house of correction, suspended for four years of probation. Nearly eighteen years later, the defendant filed a motion for a new trial claiming that he had received ineffective assistance of counsel when his attorney did not inform him prior to his guilty plea that the Sexual Abuse Intervention Network (SAIN) interview demonstrated that the victim referred to the perpetrator as "James" not "Uncle Jimmie"; the child's stepfather was known as "James," and the defendant was known as "Uncle Jimmie." Rather, his attorney informed him that the videotaped SAIN interview of the victim "had been 'lost'[] and could not be used at trial." The motion for a new trial was only supported by affidavits from the defendant and another niece of his. The motion judge ruled that the affidavits did "not raise a substantial issue by making an adequate showing casting doubt on the issue of trial counsel's performance." The defendant argues that the motion judge erred by denying his motion for a new trial without first giving him an evidentiary hearing. We affirm.
Background. The defendant and another niece of his claim in their affidavits that on the lost videotape of the victim's SAIN interview, the victim identified her stepfather, not the defendant, as her assailant. The defendant offers no transcript of his plea colloquy or the grand jury hearing where the videotape in question was shown and he was indicted. We have contrary evidence on record consisting of the report of a police officer who attended the SAIN interview, where the victim identified the defendant, not her stepfather, as her assailant. According to that report, there were eight attendees at the SAIN interview in addition to the victim, and the victim referred to the perpetrator as "Uncle Jimmy" multiple times. There is also reason to doubt the affidavit of the niece supporting the defendant. At the time she claimed she observed the tape, there was a court order that specifically restricted disclosure of the videotape to only "the defendant, legal assistant(s), or individual(s) hired specifically to assist in the preparation or trial of [the defendant's] criminal case."
Discussion. Support for an ineffective assistance of counsel claim requires proof of "behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and evidence that the defendant was thereby "deprived . . . of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974), citing Commonwealth v. Libby, 358 Mass. 617, 621-622 (1971). Other than the two affidavits submitted nearly eighteen years after the defendant's guilty pleas, there is no evidence of ineffective performance of his counsel, or that the defendant was denied a "substantial ground of defence." Ibid.
A defendant's motion for a new trial "is addressed to the sound discretion of the trial judge, and . . . will not be reversed unless it is manifestly unjust, or unless the [proceeding] was infected with prejudicial constitutional error." Commonwealth v. Colon, 439 Mass. 519, 524 (2003), quoting from Commonwealth v. Russin, 420 Mass. 309, 318 (1995). A judge may decide to deny a motion for a new trial based solely on consideration of affidavits, without resorting to an evidentiary hearing, unless a "substantial issue is raised by the motion or affidavits." Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Denis, 442 Mass. 617, 628 (2004). An issue is "substantial" when the defendant raises a serious allegation that is supported by an adequate evidentiary showing. See ibid.
Here, it was well within the motion judge's discretion to "reject as not credible the defendant's self-serving, conclusory affidavit," particularly where the only serious factual allegation contained therein is contradicted by the only documentary evidence we have of the SAIN interview; the police report. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998), citing Commonwealth v. Gould, 413 Mass. 707, 716 n.9 (1992). Similarly, the affidavit from the defendant's other niece could be rejected as "likely to be untrustworthy" given their relationship and the terms of the order in place regarding who could observe the videotape. See Commonwealth v. Grace, 370 Mass. 746, 752 (1976), quoting from Commonwealth v. Stout, 356 Mass. 237, 243 (1969) (noting that testimony of "admitted friends of the defendant" is "likely to be untrustworthy").
Finally, the judge was also well within her rights to deny the motion due to the nearly eighteen-year delay between the time of the guilty plea and the motion for new trial. There was no excuse for the extensive delay here that would outweigh the risk of prejudice to the Commonwealth. "Such a risk inevitably inheres in a motion seeking to overturn an ancient conviction." See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 552 (2002).
The defendant also contends that the judge erred by denying his discovery motion that was filed on the same day as his motion for a new trial. This issue is not fully argued and the defendant provides us with no citations to primary law supporting his right to discovery in this instance. We therefore deem this claim waived pursuant to Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
The defendant's claim, that his counsel failed to present evidence that the defendant was not in Massachusetts during part of the period over which the three indecent assaults occurred, is also without merit. He has provided us with no evidence that either he or his counsel could have established that he was absent from the Commonwealth for the entire period during which the indecent assaults were committed.
Conclusion. Because the defendant's motion was not adequately supported by persuasive evidence that he was denied the effective assistance of counsel, we hold that the motion judge did not abuse her discretion in denying the defendant's motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 19, 2014.