Opinion
No. 15–P–1515.
10-03-2016
COMMONWEALTH v. Antonio R. ABAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Antonio R. Abad, appeals from the denial of his pro se motion for new trial, contending that the motion judge (who was also the trial judge) erred in failing to hold an evidentiary hearing that would have demonstrated his desire to testify in his own defense, and that his trial counsel was not properly communicating the defendant's wishes to the trial judge. The defendant also claims that the motion judge erred by not appointing counsel for the motion, or referring the case to the Committee for Public Counsel Services for screening, and that appellate counsel was ineffective for failing to raise on appeal the defendant's right to testify in his own defense. We affirm.
After a jury trial, the defendant was found guilty of one count of rape of a child and two counts of indecent assault and battery on a child under the age of fourteen. His conviction was affirmed on direct appeal. His motion rests on the assertions that, as a non-English speaker, his desire to testify was not properly communicated to his trial lawyer, that his lawyer ignored his request, and that appellate counsel failed to raise this issue on direct appeal, despite his repeated requests to do so. He maintains that it was error for the motion judge to deny his motion without appointing counsel or providing a hearing at which the defendant could have elicited testimony from his lawyer that the defendant wished to testify, and from the interpreter assigned at trial concerning any apparent miscommunication between defense counsel and his client.
Commonwealth v. Abad, 84 Mass.App.Ct. 1128 (2014).
“The decision to hold an evidentiary hearing on a motion for a new trial is ‘left largely to the sound discretion of the judge.’ ... Only when the motion and affidavits raise a ‘substantial issue’ is an evidentiary hearing required.” Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015) (citations omitted). “In determining the adequacy of the defendant's showing, the motion judge may consider whether the motion and affidavits contain credible information of sufficient quality to raise a serious question.” Ibid.
The judge first denied the defendant's motion without prejudice, and gave the defendant the opportunity to file supporting affidavits from counsel and others. Although the defendant filed an affidavit in support of his motion, he did not supply an affidavit from either trial or appellate counsel or an interpreter. “It is the defendant's burden to [show] that he did not waive [the right to testify] knowingly and intelligently.” Commonwealth v. Smith, 456 Mass. 476, 480 (2010). However, “[a] judge is not required to accept as true the allegations in a defendant's affidavits.” Vaughn, supra at 405, quoting from Commonwealth v. Rzepphiewshi, 431 Mass. 48, 55 (2000). See Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). The judge acted within his discretion in denying the motion without an evidentiary hearing where the defendant had made no effort, despite having been given the opportunity to do so, to obtain supporting affidavits. See Commonwealth v. Pagels, 69 Mass.App.Ct. 607, 619–621 (2007) (“Conspicuously absent from the materials presented to the motion judge were any explanatory or corroborating affidavits from trial counsel and appellate counsel”). Contrast Commonwealth v. Martinez, 86 Mass.App.Ct. 545, 545–546 (2014) (defendant who attempted, unsuccessfully, to obtain voluntary cooperation of trial counsel on motion for new trial, given opportunity to subpoena counsel to evidentiary hearing on motion). The judge did not abuse his considerable discretion when he declined to credit the defendant's claim that he did not know how to get an affidavit, or that a language barrier prevented him from doing so. The defendant provided a detailed affidavit in support of the motion, and provided correspondence with counsel, in English, that was comprehensive and sophisticated.
Furthermore, the motion failed to raise a substantial issue because it was belied by the record. As the judge noted, at the request of the Commonwealth, he conducted a colloquy on the record, and the defendant raised no objection to his counsel's representations that the defendant did not want to testify. His claim that defense counsel somehow engineered the replacement of a court interpreter who told him that counsel was not communicating his wishes to the court not only lacks support from the interpreter, but is contradicted by the trial transcript, which shows two interpreters assigned to the case on the first two days of trial. A third was assigned when one interpreter was unable to cover the afternoon session.
Counsel. Finally, the defendant is not entitled to counsel on a motion for new trial as a matter of right. See Parker v. Commonwealth, 448 Mass. 1021, 1023 (2007). We accord special deference to the conclusion of the motion judge who, as the trial judge, was able to evaluate the conduct of the trial first hand. See Commonwealth v. Rosario, 460 Mass. 181, 195 (2011). The judge did not abuse his discretion in failing to appoint counsel where the defendant's claims were contradicted by the record.