Opinion
No. 34402
December, 1998
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL
On June 29, 1995, the defendant, Paul Solomonsen, was convicted of the second-degree murder of Jeffrey Rosanina. The trial was before a now retired judge of the Superior Court. This matter came before the court on the defendant's motion for a new trial. The court conducted an evidentiary hearing on November 16, 1998, and has had the benefit of extensive legal memoranda and the trial transcript. For the reasons set forth below, defendant's motion is DENIED.
FINDINGS OF FACT
For the purposes of this motion, the court makes the following findings of fact:
On April 28, 1994, defendant and the victim, Jeffrey Rosanina, were both at the Shark Club on Coggeshall Street in New Bedford. While inside the bar, defendant had a confrontation with Dorval Pacheco and Thomas Branquino. The confrontation began because Pacheco was poking defendant's back and then pretending that he had not done so. The defendant accused Branquino of poking him and complained to the manager of the bar, Joe Machado. After explanations and apologies, the problem was resolved.
Late in the evening, the defendant left the bar and returned with his friend, Jose Buitrago. Prior to returning to the Shark Club, defendant armed himself with a handgun. Defendant and his friend remained inside the bar until about 1:30 AM on Friday, April 29, 1994. Before leaving, however, defendant made eye contact with a young woman. Because someone gave defendant a "dirty look," he left the bar.
As he was leaving the bar, defendant encountered Branquino, the man with whom he had argued earlier in the evening. They exchanged words and defendant drew his gun at Branquino and a group of people. Defendant then went with Buitrago to his car, got into the passenger side, and prepared to leave the parking lot when Rosanina approached the car in which defendant was sitting. Rosanina stood between the door and the passenger compartment with one arm on the roof of the car. Defendant testified at trial that (1) Rosanina punched him, stunning him, causing him to slip out of the car; Tr. 7-88 (2) just prior to being struck, he noticed an individual walking toward his car carrying a baseball bat; Tr. 7-94 (3) after being struck, defendant looked up and saw Rosanina wielding what he believed to be a knife; Tr. 7-90 (4) the defendant grabbed his handgun, looked away, closed his eyes, pointed the gun toward Rosanina and quickly fired two shots. Tr. 7-91. Rosanina died in the hospital a few days later.
On June 29, 1995, following a trial before Judge Travers, a jury convicted the defendant of murder in the second degree. He now seeks a new trial, pursuant to Massachusetts Rules of Criminal Procedure, Rule 30(b), because "it appears that justice may not have been done." Specifically, defendant asserts that (1) newly discovered evidence casts real doubt on the justice of his conviction, (2) his trial counsel was ineffective as a matter of law in failing to investigate, exploit, and argue the significance of certain physical evidence, and (3) the trial judge's confusing and improper instructions on the "third prong" of malice require the reversal of the verdict.
At the motion hearing, counsel for the defendant presented three witnesses in support of his motion for a new trial. Defendant called Julius Richardson who testified in support of defendant's contention that there was new evidence. Richardson is currently serving a 5-7 year prison sentence for malicious destruction of property. Richardson stated that he is not a friend of defendant, but just "knows him."
At the motion hearing, defense counsel called Jack Atwood, Julius Richardson, and the defendant to the stand. The substance of the testimony of Julius Richardson is contained in the text of this opinion. Jack Atwood was defendant's trial counsel. He testified about the strategy he used in trying this case, the manner in which he would have used Richardson at trial had he been aware of his presence at the scene on the night of the incident, and the reasoning behind the strategy he used regarding the baseball bat evidence. Defendant testified briefly about his communications with Richardson while they were in custody together.
Concerning the events that occurred on April 29, 1994, Richardson said that he was waiting outside the Shark Club to get drugs from Jimmy Pike when he observed two men arguing at a car. It appeared to him that there was a man outside the car "whacking" a man inside the car. Richardson said that he did not recognize either man. Although he could see the man outside the car swinging at the man inside the car, he was unable to discern whether any contact was made. Richardson said that he also saw two other men leave the area of the car, go to a jeep, grab baseball bats, and return to the car. Richardson further stated that when the men with the bats were ten feet from the car, he heard shots and saw the men drop the bats and run.
After the shots, Richardson observed the police come in a marked police cruiser. Richardson immediately left the area because he was worried that there was an outstanding warrant for his arrest. He did not speak to a police officer at the scene.
Richardson stated that he did not make any statements to the police between the incident and the trial because of "his own problems." Even after he was no longer concerned about the arrest warrant, he failed to come forward because he was unsure about who was involved in the arrest. He stated that the only person he told about the incident was his friend, Joseph Cambra. Richardson testified that in August 1996, after hearing about defendant's conviction and feeling badly because he had information that could potentially help him, he wrote letters to his friend Missy and defendant's mother explaining what he had seen. He further stated that after writing these letters, he did not hear from anyone until recently contacted by defendant's attorney. Richardson admitted that he was convicted of assault on April 22, 1995, malicious destruction of property on March 15, 1991, trafficking on August 14, 1990, and intimidation of a witness on November 27, 1989.
Richardson testified that he met the defendant at the Ash Street Jail while the defendant was awaiting trial. At that time, Richardson told the defendant that he had seen what had happened, but did not discuss details with the defendant. The defendant and Richardson were also incarcerated together at MCI Concord for some period of time immediately after defendant's conviction in June 1995.
At the motion hearing defendant testified that, although he met Richardson at Ash Street Jail while he was awaiting trial, Richardson did not give defendant any information regarding the case. Defendant also testified that he was not aware of Richardson's presence at the scene of the incident until his mother told him about the letter that Richardson sent her. This court credits the testimony of Richardson to the effect that he told defendant that he had seen what had happened.
DISCUSSION
The trial judge, upon motion in writing, may grant a new trial at any time if it appears that justice may not have been done. Mass.R.Civ.P. 30(b). The standard is intentionally broad and therefore, the disposition of the motion for a new trial is left to the sound discretion of the motion judge. Commonwealth v. Moore, 408 Mass. 117, 125 (1990); Commonwealth v. Schand, 420 Mass. 783, 787 (1995). There are two grounds upon which a defendant may base his motion for a new trial and both are to be judged according to the aforementioned standard, whether or not justice has been served. Mass. Rules Civ. P. 30(b). The first ground is based on newly discovered evidence and the second relates to the conduct at trial. Id; Commonwealth v. Dascalakis, 246 Mass. 12, 21 (1923).
A. Newly Discovered Evidence:
A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction. Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The evidence said to be new must not only be both material and credible, but must also carry a measure of strength in support of the defendant's position. Id. Simply, the evidence "must be weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful consideration." Commonwealth v. Brown, 378 Mass. 165, 171 (1979) citing Davis v. Boston Elevated Ry., 235 Mass. 482, 495 (1920). It must be credible in character and relate to the important points of the case. Id.
In determining whether or not to grant a new trial motion, the judge bases his conclusions in part on the credibility of the oral testimony of the witnesses. Id. When the motion judge is the same judge that presided at the trial, it is logical that he is in the best position to weigh the credibility of the proffered evidence and to assess its possible impact on the jury. Id. at 172. When, as in this case, the motion judge did not preside at the trial, that judge nonetheless has the responsibility of assessing the credibility of witnesses who testified at the hearing on the new trial motion. Grace, supra at 307.
Furthermore, to grant a new trial based on newly discovered evidence, the motion judge must find that there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial. Id. at 306. The motion judge determines not whether the verdict would have been different, but rather, whether the new evidence would probably have been a real factor in the jury's deliberations. Id; see also Commonwealth v. Phachansiri, 38 Mass. App. Ct. 100, 108 (1995).
Not only must the newly discovered evidence be credible, material, and significant, but it also must truly be newly discovered, as "it must have been unknown to the defendant or his counsel and not reasonably discovered by them at the time of trial." Grace, supra at 306. The party moving for a new trial must demonstrate its use of due diligence in attempting to get the information that it now contends is new. Id. Consistent with the Commonwealth's interest in ending litigation once a case has been fully and fairly tried, the category of newly discovered evidence is limited. Id.
As noted earlier, while defendant was awaiting trial at Ash Street Jail, he became aware of Richardson's presence at the scene on the night of the incident. There is, therefore, real doubt at whether Richardson's evidence is newly discovered. This court will assume, however, that Richardson's testimony is newly discovered evidence, and will therefore determine whether such evidence is material, credible, and significant. Richardson's testimony regarding the men with the baseball bats simply corroborates defendant's trial testimony that, before being struck, he saw someone with a baseball bat at the rear of his car. Tr. VII p. 94-95. Newly discovered evidence that is merely cumulative of evidence admitted at trial tends to carry less weight than new evidence that is different in kind. Grace, supra at 305-306. Richardson's testimony is cumulative and therefore not likely to have been a real factor in the jury's deliberations. Commonwealth v. Moore, 408 Mass. 117, 127 (1990).
Although defendant testified at the trial that he only noticed one man with a baseball bat, Tr. VII p. 94-95, evidence was presented to the jury indicating that two baseball bats were found at the scene. Tr. VIII p. 43, 45-46, 47. There was also evidence at the trial that defendant was at odds with a group of men, Tr. VII p. 69-71, 80-91, and defense counsel so argued in his closing. Tr. VIII 50-54.
Moreover, the defendant stated both during the police investigation as well as during his trial testimony that he fired the gun because he believed that Rosanina was carrying a knife. Tr. VII p. 88-92. Although, as noted, there is evidence in the record that defendant was aware of the presence of at least one man with a baseball bat and his lawyer used the bats to support his self defense strategy, both the defendant in his testimony, Tr. VII p. 90, and his lawyer in his final argument Tr. VIII p. 52-54, relied primarily on the knife to establish defendant's frightened state of mind when he shot Rosanina. Accordingly, Richardson's evidence would not likely strengthen defendant's self defense strategy. Grace, supra at 305-306.
Having concluded that Richardson's testimony is not significant or weighty, it is not necessary to proceed with any further analysis of the new evidence. Nevertheless, this court will briefly address the issue of Richardson's credibility.
Because the party moving for the new trial bears the burden of affirmatively demonstrating the materiality, credibility, and significance of the new evidence, it follows that it is the motion judge, and not a jury, who must initially assess the credibility of the evidence. Grace, supra at 305-306. This court finds that there are substantial doubts about Richardson's credibility. On two separate occasions, once while defendant was awaiting trial and again after defendant's conviction, defendant and Richardson were housed at the same institution and thus had ample opportunity to discuss the case. See Brown supra at 172. Furthermore, Richardson has an extensive criminal record which, in and of itself, may not completely discredit a witness; however, such a record, when coupled with other facts, supports a finding of incredibility. See Commonwealth v. Fano, 400 Mass. 296, 302-303 (1987) (past conduct may have a tendency to demonstrate present untruthfulness; earlier disregard for the law may suggest to the fact finder similar disregard for the courtroom oath).
At the motion hearing, defense counsel argued that it was the jury's responsibility to judge the credibility of the witnesses. Counsel relies upon Commonwealth v. Roberio, 428 Mass. 278 (1998), a recent Supreme Judicial Court decision, to support this proposition. In that case, the motion for a new trial was based on the contention that defendant was denied the effective assistance of counsel because his trial counsel did not investigate the possible defense of lack of criminal responsibility. At the hearing on the motion for a new trial, the defendant offered the testimony and the report of a clinical psychologist which suggested that lack of criminal responsibility may have been an effective defense. The trial judge denied the motion for a new trial because, in his view, although trial counsel was ineffective, the criminal responsibility expert was not credible. The Court overturned this decision, holding that it was an error for the judge to deny the motion for a new trial based on his assessment of the expert's credibility. Roberio does not control this case. If counsel is ineffective in failing to present material evidence, the credibility of that evidence is a jury question. On the other hand, in deciding whether to allow a motion for a new trial based on newly discovered evidence, this court must decide whether that evidence is material, credible, and casts real doubt on the justice of the conviction.
B. Ineffective Assistance of Counsel:
Upon a claim of ineffective assistance of counsel for the defendant in a criminal case, the court examines the particular circumstances of the case to determine whether, as a practical matter, there has been serious incompetency, inefficiency or inattention of counsel. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If the court finds that counsel behaved in a manner falling measurably below that which might be expected of an ordinary fallible lawyer, the court must next determine whether such conduct has likely deprived the defendant of an otherwise available, substantial defense. Id. "Judicial scrutiny of counsel's performance must be highly deferential, indulg[ing] a strong presumption that counsel's conduct falls within the wide range or reasonable professional assistance." Commonwealth v. Florentino, 396 Mass. 689, 690 (1986). Given the strictness of this standard, the defendant bears a heavy burden in establishing ineffective assistance of counsel such that a new trial is required. Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 631 (1992).
The defendant contends that he should be granted a new trial because his trial attorney failed to adequately investigate, discover, and exploit the existence of two baseball bats found, photographed, and seized at the scene of the shooting. This court finds defendant's argument to be without merit. The record indicates that defendant's trial attorney questioned defendant, Trooper Horman, Trooper Wheaten, and Ernesto Belo about the presence of baseball bats at the scene of the incident. Tr. VII p. 94-95; Tr. VII p. 22-23; Tr. VII, p. 28-30; Tr. II p. 178; Tr. IV p. 227-228. Moreover, defendant's trial counsel mentioned the baseball bat on at least seven occasions during his closing argument. Tr. VIII p. 25; Tr. VIII p. 31; Tr. VIII p. 36; Tr. VIII p. 43; Tr. VIII p. 45-46; Tr. VIII p. 47.
Defendant's trial counsel, Jack Atwood, testified at the motion hearing as to his strategy regarding the baseball bats. Specifically, he testified that pictures of the baseball bats were introduced into evidence so the jury were made aware of their presence; however, neither of the actual bats was introduced. He stated that his decision not to conduct forensic tests on the bats was deliberate, due to his experience with testing that has backfired. He questioned several witnesses about the bats (Tr. VII p. 94-95; Tr. VII p. 22-23; Tr. VII, p. 28-30; Tr. II p. 178; Tr. IV p. 227-228) and kept bats in a bag in the courtroom (for somewhat theatrical purposes). Defense counsel testified that his strategy was to subtly emphasize the manner in which the baseball bats related to defendant's state of mind at the time of the shooting.
This court recognizes that strategic or tactical decisions of defense counsel are not immune from scrutiny, or insulated from remedy, if they were "manifestly unreasonable" in the context of the case. Commonwealth v. Conley, 43 Mass. App. Ct. 385, 392 (1997). Unlike many of the cases cited by the defendant, however, this is not a case in which a trial attorney abandoned the only defense available and left the defendant without any defense at all. Commonwealth v. Haggerty, 400 Mass. 437, 442 (1987). The trial counsel in this case relied on a self defense strategy primarily focusing on defendant's state of mind upon seeing a knife pointed in his direction. VIII 52-54. Even had defense counsel neglected to mention the bats, which is not the case, by failing to do so, he would not have been leaving the defendant without a defense. Accordingly, in this case, defendant's trial attorney's decision on how to present the baseball bat evidence to the jury to support the self defense strategy certainly does not rise to the level of being "manifestly unreasonable." Conley, supra at 392.
C. Instructions on Third Prong Malice:
Defendant contends that he is entitled to a new trial because of incorrect jury instructions on the third prong of malice. In explaining that the jury would be permitted, but not required, to draw an inference of malice from the use of a dangerous weapon, the court commented, "You may draw the inference of malice, however, only if the defendant used such force that according to common experience there was a plain and strong likelihood that death or grievous bodily harm would follow the defendant's act." Tr. VIII p. 112 (emphasis added). The defendant now asserts that including "or grievous bodily harm" in the instruction improperly enabled the jurors to infer malice on proof that the defendant committed an act that he knew would result in something less than death.
Defense counsel did not object to the instruction subsequent to the judge's charge. This court declines to consider the merits of an objection that could have been raised at trial but was not. Commonwealth v. Hallet, 427 Mass. 552, 554-555 (1998). The defendant is of course free to pursue this issue in the direct appeal from his conviction.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendant's motion for a new trial be DENIED.
_______________________________ Raymond J. Brassard Justice of the Superior Court
Dated: December, 1998