Opinion
11-P-522
03-02-2012
COMMONWEALTH v. MANUTE ABEKJOK.
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
In these consolidated appeals, the defendant argues that (1) the trial judge abused his discretion in denying his motion for a new trial, which was based on claims of both newly discovered evidence and ineffective assistance of counsel, (2) the trial judge abused his discretion by improperly restricting the defendant's cross-examination of the victim, and (3) the trial judge erroneously failed to strike hearsay statements from the victim's testimony. We affirm.
1. Motion for a new trial. The defendant argues that his motion for a new trial should have been allowed because of newly discovered evidence and the ineffective assistance of his trial counsel. We review the decision in a motion for a new trial 'only to determine whether there has been a significant error of law or other abuse of discretion.' Commonwealth v. Grace, 397 Mass. 303, 307 (1986). 'Where, as here, the motion judge was also the trial judge, the decision of the motion judge is entitled to special deference.' Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998). '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. The evidence said to be new not only must be material and credible but also must carry a measure of strength in support of the defendant's position.' Grace, 397 Mass. at 305 (citations omitted). 'Moreover, the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial.' Id. at 306. In order to be considered new evidence under this standard the evidence 'must . . . have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial.' Ibid. 'The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence.' Ibid.
As the judge below concluded, the defendant's language difficulties do not constitute newly discovered evidence because any difficulty the defendant had understanding or communicating in English would have been known to defense counsel, who met with his client several times, both in and out of court, over a period of seven months before trial and did not detect any problem. See Commonwealth v. Fappiano, 69 Mass. App. Ct. 727, 732-733 (2007) (claim of battered woman's syndrome was not newly discovered evidence where defendant and attorney were aware of prior abuse). Even were we to conclude otherwise, the defendant has not demonstrated how the supposedly undiscovered evidence would have affected or aided his defense, which was that he did not assault the victim.
The judge also did not err in concluding that information concerning the defendant's wife's cognitive disability is not newly discovered evidence. The defendant's affidavit demonstrates that he was aware of his wife's cognitive limitations, even if he did not know her exact diagnosis. Information known to the defendant at the time of trial is not newly discovered for purposes of a motion for a new trial. See Grace, 397 Mass. at 306. The motion judge likewise was entitled to conclude that this evidence, even if newly discovered, would not have materially affected the trial because the jury were unlikely to have given much weight to the testimony of the defendant's spouse. Moreover, the evidence would have borne only on the wife's credibility. See Commonwealth v. Toney, 385 Mass. 575, 581 (1982) ('Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial').
Similarly, it was not an abuse of discretion for the motion judge to conclude that evidence of the defendant's alleged post traumatic stress disorder (PTSD) is not newly discovered. As the judge noted, the defendant knew of the traumatic experiences of his youth in the Sudan but chose not to disclose them to his attorney. See Fappiano, 69 Mass. App. Ct. at 732-733. Nor did the judge err in concluding that the effect of PTSD on the defendant's mental state was not relevant in this case. The defendant did not claim that his PTSD caused him to commit the assault; rather, his defense was that the assault never happened.
The defendant also argues that trial counsel was ineffective because he failed to discover or investigate the defendant's linguistic limitations, the wife's cognitive disability, or the defendant's PTSD. The defendant's argument fails, if for no other reason, because it is inadequately supported by the record. Although the record supports a finding that trial counsel failed to return a phone call from a staff member of the center at which the defendant lived, it does not contain any information as to what he would have learned had he returned the call. Nor is there anything to suggest that defense counsel had any reason to think that the staff of the center had information that could be important to the defense.
The defendant has also failed to demonstrate that counsel's failure to return the call 'likely deprived [him] of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). His only claim in this regard is that, had counsel properly investigated, he would not have permitted the defendant to go to trial, but rather would have urged him to accept the Commonwealth's offer of a continuance without a finding. Absent a representation by the defendant in his affidavit that he would have accepted such a disposition had counsel recommended it, the defendant has failed to establish a 'reasonable probability' that the case would not have gone to trial. See Commonwealth v. Clarke, 460 Mass. 30, 47 (2011).
2. Direct appeal. The defendant argues that the trial judge improperly restricted recross-examination of the victim when he precluded further inquiry into the victim's worker's compensation claim. He contends that further information concerning the worker's compensation claim would have borne on the victim's credibility and bias. 'Although the defendant is entitled to a reasonable cross-examination of witnesses against him, the scope of cross-examination rests largely in the sound discretion of the trial judge. We shall not overrule a trial judge's determination as to the proper scope of cross-examination unless the defendant demonstrates that the judge abused his discretion and that the defendant was prejudiced thereby.' Commonwealth v. Miles, 420 Mass. 67, 71-72 (1995) (citations omitted). To determine whether the limitation was reasonable, 'we weigh the materiality of the witness's direct testimony and the degree of the restriction.' Id. at 72.
The testimony of the victim was certainly material to the case, and the defendant was entitled to introduce evidence of bias or prejudice to impeach the victim's credibility. See Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987) ('Reasonable cross-examination in order to reveal bias or prejudice of the witness is a matter of right'). The defendant has not shown, however, that the judge restricted recross-examination to an unreasonable degree. See Commonwealth v. O'Brien, 419 Mass. 470, 475 (1995) (scope of recross-examination is limited to the scope of redirect). It was only on recross that counsel sought to ask about a worker's compensation claim and the objection was sustained. The judge did not restrict the scope of the initial cross-examination at all. Defense counsel questioned the victim about the incident report she filed and the fact that she no longer works at the homeless shelter. He also established that the victim missed only a week of work after the incident, was paid for time off, and could face disciplinary action for filing a false report to her supervisor. Moreover, there is nothing in the record to suggest what type of evidence further inquiry would have produced, or what benefit he would have derived from its introduction. As a result, the defendant has not demonstrated 'a reasonable likelihood that, had the cross-examination been permitted to continue without interruption, testimony of more than minimal value to the defendant might have been forthcoming.' Commonwealth v. Fordham, 417 Mass. 10, 19-20 (1994).
Second, the defendant argues that the victim's testimony that another resident shouted 'Not in America you don't hit women' after the assault was inadmissible hearsay and should have been excluded. We disagree because the statement clearly fell within the excited utterance exception to the hearsay rule. See Commonwealth v. Santiago, 437 Mass. 620, 624-625 (2002). The statement was made immediately after two exciting events: a fire evacuation and a physical altercation. See Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008) (utterance made after assault was 'excited'). It was made at the scene of the events and contemporaneously with them. See Commonwealth v. Hardy, 47 Mass. App. Ct. 679, 682 (1999) (factors to consider are 'whether the statement is made at the place where the traumatic event occurred or at another place, the temporal closeness of the statement to the act it explains, and the degree of spontaneity' [citations omitted]).
Even were we to assume error, we discern no prejudice. The prosecutor did not use this testimony in any way and did not mention it in her closing argument. Instead, the prosecutor mentioned only the defendant's version of what the other resident said -- testimony that was elicited by defense counsel on direct examination of the defendant.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Fecteau & Wolohojian, JJ.),